THE SECOND PART OF T …

THE SECOND PART OF THE PARALLELE, OR CONFERENCE OF the Ciuill Law, the Canon Law, and the Common Law of this Realme of England.

WHEREIN THE AGREE­ment and disagreement of these three Lawes touching diuers matters not before conferred, is at large debated and discussed.

Whereunto is annexed a Table contayning the principall Questions, matters, and pointes of the Dialogues ensuing.

Handled in seauen Dialogues, by WILLIAM FVLBECKE.

LONDON Printed by Thomas Wight, 1602.

A Table of the seuerall titles of the seuen Dialogues ensuing.

  • 1. Of Prohibitions and Con­sultations. fol. 1 a
  • 2. Of Actions vpon the case. 16. a
  • 3. Of Debts. 27. b
  • 4. Of Accomptes. 41. b
  • 5. Of Waste done in a mans ground. 49. b
  • 6. Of Parceners. 55. b
  • 7. Of Conditions. 58. b

TO THE MOST GRATIOVS AND Reuerende Father in God, Iohn by the prouidence of God, Lord Archbishop of Canterburie, Primate and Metropolitane of all England, and one of the Lords of her Ma­iesties most honourable priuie Counsell.

RIght reuerend, and right ho­nourable, it is now a twelue-month past sithence I presen­ted to your Grace a compa­ratiue discourse of the lawes: A subiect deseruing the in­dustrious search of some di­uing braine, by mee superficially handled, and as it were left to others to be complementally perfected: but sithence by good successe and the fauour of the Almightie it hath gained the approbation of men skilfull and learned, who haue perswaded and en­couraged mee to make further progresse in this bu­sinesse, least I might seeme coy in weighing lightly [Page] their frendly speeches, & careles in refusing so im­portant a taske, though to me importable, as being the club of Hercules laid vpon the sholders of Hy­las, I haue again aduentured vpon this cumbersome prouince, and drawne other furrowes in this stony soile: and as I haue continued the worke, so haue I continued the dedication thereof in all constant ob­seruance to your Lordship, whose regardfull coun­tenance toward me hath merited more at my hands then such worthlesse paines, rather by the trauaile of my pen, and the practicke of my contemplation, to publish and notifie to the worlde my dutifull thankfull and zealefull affection toward your gra­ces person, then by the vnfeatured lumpe and dis­proportioned bearewhelpe of my misconceyuing, & miscarying endeuour, to platforme a consummate and exemplarie Parallele or Trinomion, which is an obiect to be aymed at, and a pray to be pursued; not of the Stonegall, the Muskette, and the Merlin, but of the Eagle, the Goshauke, and other birdes of an higher wing, and more surmounting flight: and for the accomplishment thereof it were to be wished, that God would vouchsafe our Innes of Court with some second Budaeus, that is a third Varro, whose skill in the lawes might bee exquisite, whose paines extreme, whose reward excellent: for mine owne parte though I bee rather a rash then a voluntarie soldier in this campe, yet I am bound by conscience not to eate the bread of idlenes, to do for my country what I can, and to labour in my calling as I may. [Page] And whatsoeuer this Booke is, or whatsoeuer my selfe am, or whatsoeuer my prayer may preuaile with Almightie God, all these, if these be anie thing, doe with the knee of submissiue reuerence professe vassallage to your Lordship. And if the Heauens would sympathize with my hart, and my hart should not by pleasing my selfe, and others, displease your Grace, the verie Heauens should be long without you, that this land may be long the better for your Lordship. The God of heauen graunt this, if it be his will, for Learninges sake, Quae duplices tendens ad sydera palmas, prayeth for the same: Vertue prayeth for the same: Straun­gers pray for the same: Beneficence to the riche: Munificence to the poore, craue the same: The Church with sacred vowes: The Common weale with more then common wishes implore the same. What period can be better then prayer? Therefore here I cast anchor, and bind vp these spreading lines.

Your Graces most hum­ble to commaund: WILLIAM FVLBECKE.

The Introduction to the se­cond part of the Parallele, or conference of the Ciuill Law, the Common Law &c.

NOmomathes, when the first con­ference of the three Lawes was finished, gaue himselfe to his recreation, which was the hunting of the Bucke, an exercise commendable for Gentlemen, and vsed in auncient time of them, whose high estates had entitled them with the names of Heroes, & Semidei. But when winter began to shed his cold influence, and to replenish the aire with congealing vapours, to make the earth as it were a naked beldam, and to cause the dugges of the sea to swell with surg­ing billowes, Nomomathes retired to his bookes, and gaue a farewel to the fields, betrothing himselfe that winter to his studie. And because the iuice of the late conference of the Lawes had turned to good bloud in his mind, he meant to re­continue the conference, of which he had a more strict regard then of the for­mer: [Page] For when it was rumord in the countrie where Nomomathes dwelt, that such a conference was had: and after­ward certain copies were dispersed, and diuulgated, some were wel pleased, some were discontented with the Dialogues: Pro captu lectoris habent sua fata libelli. Amongst the rest that were discontēted was a Par­son, a plaine countrie man, and a gentle man not vnlearned, who when they had heard, that Nomomathes meant to reuiue and recontinue the conference, purpo­sed to go to his house, and to open their mindes as they conceiued of the confe­rence. Their purpose they followed, and to the house they came, where beeing kindly and curteouslie entertained of Nomomathes, and in their by-talke glaun­cing at the Dialogues: Nomomathes willed them to spare no speech, and professed that hee would willinglie admit their censures, and that he would heare them in order: They seeing his patience pre­pared, deliuered in few words their pri­uate conceits. And first the gentleman [Page] tooke exception to the discourses of Codicgnostes: for that he in the first Dia­logue, discussing matters of common weale, and of the Ciuill Law, did forget to handle verie important matters, and to his profession not impertinent. The first was because hee did not treat of Dettes, a thing in the Ciuill Law not omitted: and yet in no Law sufficiently debated. Secondly, he speaketh no­thing of Accompts or reckonings, wher­as that is a large and frequent title in the Ciuill Law. Lastly speaking ex professo of the originall of Tenures and ser­uices in the fourth Dialogue, he spea­keth verie little of Conditions, which verie often are the constituent causes of these Seruices: With this he con­cluded, and then spake the Parson, who did expostulate with the Canonist some iniuries, because the Canon be­ing so full and pregnant in matter of Tythe, hee did not vouchsafe to speake anie one woord of Tythes: And whereas we haue Parsons said he, [Page] haue much impediment by Prohibitions, and many times wrong, when they come to triall: for the countrie people which are the Iurors, who haue no more desire to paie their Tythes, then the Diuel hath to lose his entercourse with the seauen deadly sinnes; the Pope to be a Prote­stant, and a Beare to go to the stake. If any Prohibition concerning Tythes come to be tried by them, ar as sure to passe against the Parson, as an old chim­ney is sure of blacknes. But let any mat­ter come to be tried touching common, which concerneth themselues, and their owne profit, they will as surelie go with the commoner, as the cloudes goe with the Northeast wind: Therefore it see­med to him to be verie conuenient, that because the Canon doth so much fauour Parsons, that therefore the Canonist es­pecially should haue debated at large of these matters: And he thought the Ca­nonist speaking so little of them in the whole discourse, was much troubled with the tooth-ache, (the Canonist here [Page] being somewhat cholericke interrupted him, and said he iangled: for he said there were manie thinges proposed in the Dialogues, which the Canon Law neuer medleth with all, neither hath it so much tasted of them, as the dogge licking of Nilus: And in some thinges which were in the Dialogues, the Ca­non Law hath nothing els, but which the Ciuill Law hath: so that he should not haue kept decorum, but should haue thrust his sicle into the haruest of Co­dicgnostes, if he should haue encroched vpon such thinges, as the Canon Law hath as it were at the second hand strei­ned from the Ciuill. But, said he, as touching Tythes, if any question had been proposed, I would not haue been defectiue in the handling them at large. Then the poore Countrie man made a lowe conge, and Nomomathes bowed vnto him, as being willing to heare him. Sir (quoth he) I am by your worships fa­uour a poore countrie yeoman, dwelling neare a place called Aitipolis: and my [Page] yeares are more then my knowledge, my patrimonie better then my education, and my hand more nimble then my toong: And I haue had a verie great desire to haue some vnderstanding of Lawe, because I would not swim a­gainst the streame, nor be vnlike vnto my neighbours, who are so full of Law-points, that when they sweat, it is nothing but Law; when they breath, it is nothing but law; when they neese it is perfite law; when they dreame it is profound law. The booke of Little­tons tenures is there breakfast, their din­ner, their boier, their supper, and their rere-banquet: Euerie plough­swayne with vs may bee a Seneschall in a Court Baron: Hee can talke of Es­soines, Vouchers, Withernams, and Recaptions: And if you controll him, the booke of the Groundes of the Law is his portesse, and readie at his gir­dle to confute you. Surelie sir, my neyghbours are full of sension and tention, and so cunninge, that they [Page] will make you beleeue, that all is gold, which glistereth: So that for a man to be amongest them, and to haue lyuing and want Law: is as if a man should haue bread to eate, and want teeth to chew it: Which occasions mooued me at the first to seek for some skill in Law, and amongest other bookes, I bought The Conference of Law, whereof hath been spoken, and casting mine eie vpon the diall of common wronges, and tres­passes: I wondered that he which main­taineth the Common Law, amongest his common wronges and trespasses, he spoke nothing of Wast done in a mans ground: and verie little of an Action vpon the case, which is a wheele much turned about in the place where I dwel. And though hee hath deliuered much of Iointenants, and Tenants in com­mon, he speaketh either little or no­thing at all of Parceners. Now manie of vs countrie people marrie verie often with landed women, and therefore would gladly be seene in that learning. [Page] Truely Sir I bought the booke for my more vnderstanding of the law, and for the noueltie, and because it was in En­glish: yet there is a vengeance deale of Latin in it, which put mee to the cost to buy a Thomases Dictionarie, but it is no great matter for that, for it wil serue my sonne Reginold, when he shall bee tenne yeares olde, or thereabout: But I pray you sir at the next conference let vs haue somewhat of these matters, which I haue mentioned vnto you: When hee had ceased to speak, Nomomathes grauely and with aduise censured their censures, and spoke in this manner. I see now (saide he) the prouerbe to be verified Quot ho­mines tot sententiae. there be as many minds as there bee men; And though ye haue deliuered your exceptions in sportfull manner, which as I doe not greatly dis­like, so I do not greatly delight in, yet I must confesse euerie of them doth flie to the marke, and the blame resteth vp­on me, who might haue proposed these matters to be discussed; but because the [Page] lucre, or losse of the conference, was to redownd wholly to mee in all corres­pondencie of reason, and not to others, but by my curtesie: I thought it a more conuenient course, and more free and ingenious to follow the threed of mine owne choise, then the vncertaine winge of popular conceit. Againe, all things cannot be handled at all times, and no­thing is to be intruded into such a con­ference which doth not relice to the sū ­drie palates, and tastes of these seuerall lawes. For many things there be in the common law which hath not any affi­nitie with any thing in the ciuill or Ca­non. But because your motions are so cōsonant to reason, & so directly respe­ctiue to your vocations and functions, which in no well ordered cōmon weale ought to be loosely regarded: therfore I protest vnto you in sinceritie, that if all these things, which you haue mētioned may be cast in the molde of a tripartite discourse, the secōd cōferēce shall bring forth that which you haue before con­ceited, [Page] they thanking him for this kind­nesse departed, he immediatly questio­ned of the Lawyers, whether they could bring into the compasse of their seuerall reckonings all these matters abouesaid, who anusweared that they could. Then said he, because the Canonist hath bene so deeply charged, we will begin with tiths which he is reproued for omitting. Thē the Canonist said, that they might be dis­coursed vpon according to the seuerall lawes vnder the title of prohibitiō. That title thē said Nomomat. shal be the first: the second of actions vpō the case: the third of debts, the fourth of accounts, the fift of wast, the sixth of parceners, and the se­uenth of cōditions, wherfore bend your selues wholly to this taske, and let these things be diligently searched & conside­red of you, and for this purpose take the deliberation of twentie daies: which be­ing had, and the twentie daies being run out, Nomomathes did thus parle with Cano­nologus.

The first Dialogue of the second part of the Paral­lele, or conference of the Ci­uill Law, the Canon Law, and the Common Law of this Realme of England.
Of Prohibitions and Consultations.

NOmomathes.

I am 1. Diuision. verie desirous Canonologus, to know the first and pri­migeniall existence of Ty­thes: 1. The origi­nall of Tythes is inquired of. that their originall being knowne, their law­fulnes, and necessarie vse may appeare, which hath not seldome by di­uers obiections and quarrellous surmises been shaken, and some haue engaged themselues so deepelie into this controuersie, that they haue suffered great affliction therefore, if not losse of life. 2. The coun­cell of Con­stance is said to haue con­demned VVic­lif, for holding Tythes to be pure almes.

Canonologus.

It is true: And amongest the 189. Articles of Wiclif, condemned by the Councell of Constance, that was noted especi­allie to be erronious, that he held Tythes to be [Page] nothing else, but pure, and frank almes: and that the Parishioners might withhold them from their Pastors, if they were wicked men: And for that especiallie he is said to haue been burnt Rebuff. in tractat. de Deci. 5. qu.: for that which belongeth to God may not at mans pleasure be derogated, de­tracted, or diminished.

Nomoma.

Yea, but how doe you proue 2. Diuision. that they belong to God?

Canonol.

I can easilie prooue that by their 1. The origi­nall of Tythes is demonstra­ted to be by the Law of God. originall and lawfull institution of them, which was thus: God hath set downe this rule in Exodus: Decimas & primitias tuas non tardabis offerre Exod. c. 22.. And in Leuiticus more parti­cularlie he hath appointed the payment of Tythe: Omnes decimae terrae, siue de pomis ar­borum, siue de frugibus, domini sunt, & illi sanc­tificantur Leuit. c. vlt.. Neither is that dissonant which is written in the Prouerbes of Salomon: Ho­nora dominum de tua substantia, et de primi­tijs frugum tuarum da pauperibus Prouerb. 3.. Tythes cer­tainlie 2. God his de­puties for the receit of Ti­thes are set downe. are God his tributes; and as the Ca­non saith, are giuen him in signum specialis do­minij c. cum non sit eod.. And it is likewise set down, who should be God his deputies for the receit of such Tythes: Filijs Leui dedi omnes decimas pro ministerio quo seruiunt mihi in tabernaculo foe­deris Numb. c. vlti.. The reason is set downe by Ezechias: Vt possent vacare legi Dei 2. Paralipo. c. 13.. And by the apo­stle Paul: Qui altari seruit, de altari viuere debet 1. Corinth. 9.. [Page 2] And of paying Tythes, the verie Heathen 3. The Hea­thens which knew not God, had great regarde of paying Ti­thes. which knew not God had great regarde, as may appeare by Plinies report, where he saith, That Frankensence being gathered, was conueyed on Camels backes to Sabola, there being but one way to carie it, and to go out of that waie was capi­tall, and at the gate which was at the end of the way, the Priestes did receyue Tythes of the things that were caried for their God called Sabis: which Tythe or Tenth part they tooke by measure, not by weight: And before such payment of Tythe, there was not permitted any merchandize of them Plini. lib. 12. c. 14.. And the Romanes did paie such a Tithe vnto Hercules. And they accompted Lucullus, 4. Lucullus is specially com­mended for paying Tithe. who was verie skilfull of their Lawes and cu­stomes to haue been greatlie increased in his wealth and stocke, especiallie for this, because in the due performance of his Tithe, he was alwaies diligent and exquisite Alex. lib. genia. 3. c. 22.. And when Veios being taken, gold should haue been sent to Apollo of Delphos, in the name of the Tenth of the pray which Camillus had vowed vnto 5. Camillus is likewise com­mended for his diligēce in pro­curing Tenth to be paid. him, and in the treasurie there was no great store of gold for that defrayment, the Romane nations brought into the treasurie as much golde of their iewels and ornaments, as did serue for that purpose: rather hauing regarde of publike duetie, then priuate profite Liui. lib. 5.. And Plinie likewise testifieth, that the Ro­manes 6. The Ro­manes carefull in paying first fruites. did not taste, nor make anie vse of their [Page] new corne or wine, vntill they had giuen their first fruits vnto the Priestes Plini. lib. 18. c. 2.. And Pharao in the time of the great famine of Aegypt did al­low to the Priestes a certaine liuelode of corne out of the barnes Genes. 47., which is not discrepant from the ordinance of God, as it is set downe in the prophecie of Malachie: Inferte omnem decimam in horreum meum, vt sit cibus in domo mea, & probate me super hoc Malach. 3.. Certaine it is that they which dutifully and plentifully pay their Tythes without fraude and miserable pinching, or malicious quarrelling with their Pastor, or Curate, do more florish and prosper in their wealth, substance, and their profits of the earth, then such as prophanely and iniuri­ously deteine them:

‘ Cura dijs dij sunt, et qui coluere colentur. Ouid. in Metamorph.’

And there is a good similitude or obseruation collected by Rebuffe vpon the affliction of the Philistines, that whilest the Philistines with­held the Arke of God, they were punished with manie scourges, penalties, and correcti­ons: For the fruites of their fieldes was deuou­red of the Mise, and Locustes: and so he saith, that the lay people as long as they with hold the lawfull Tythes from their Ministers, shall be with diuerse losses and crosses afflicted Rebuff. trac­tat. de Deci. qu. 15..

Nomomath.

If Parsons ought to haue tithes as you haue plainely proued, then they ought to be contented therewith and not to haue any [Page 3] lands or tenements, which now they haue: for 3 Diuision. 1. Whether Parsons ought to haue no more liuing then tythe. 2. It is deny­ed by Cano­nologus that they ought to haue no more liuing. as there is an affirmatiue precept in the law of paying tithes: so there is another negatiue or­dinance that the Leuites should possesse no­thing els.

Canonol.

But that negatiue law was not made to be perpetuall, as may appeare by the last Chapter of Leuiticus & by the 27. and like­wise by the 25. Chapter, where it is expresse­ly said. Domus vrbium Leuiticorum pro possessi­onibus sunt inter filios Israel, suburbana autem eorum non veneant, quia possessio sempiterna est.

Nomomath.

Whether by your law may a man prescribe in not paying tithes.

Canonol.

No man by our law may prescribe 4. Diuision. in not paying tythe: Dom. in c. 2. col. ill. de prae. in. 6. and a man is bound to pay tythe though by an hundred yeeres hee haue not payed, because if it be an offence to pay slowlie, it is a greater offence not to pay at all: c. decim. in princip. 16. qu. 1. and the longer the tythes are with-held, the offence is so much greater, because as the reason of our law is: diutius detinent infaelicem animam alligatam: c. fin. de con­suetu. but a Layman may pre­scribe in paying a speciall portion in lieu of the whole tythe as to pay the twelfth part, or the twentieth part. Part. paris­consil. 25. vidi­at. 3. nu. 21. vil. 4 Yet if the Minister or Curate may not be maintained by the residue of the Tythes, he may sue for the whole Tythe Augel. clauus in ver­sic. 10.. And if there be a composition betwixt the Cu­rate, and his Parishioner, that hee shall pay no [Page] tithe this compositiō is meerly void: otherwise it shold be if the composition had bene that he should pay a certaine portion of tythe, as the sixtenth or twentith part, or that he should pay no tythe for certain things: for though the cō ­position were before the Bishop, yet it could be no otherwise: Text▪ in c. venerab. de confir. vtil. yet according to our law the Bishop may by way of composition alter the place or time of paying tythes.

Codicgn.

To this which you haue said our 2 The ciuill Law agreeth thereunto. law agreeth, & we haue an expresse rule: sacer­doti petenti decimas non potest obijci compensatio. Ludouic. de Rom. in sin­gular.. and the reason is because fisco petenti tributa non potest obijci compensatio l. 3. & 4. c. de com. pen. le. aufert. §. qui compensati. ff. de iu. fisc.. Therefore much­lesse may compensation be obiected in tythes, quae deo debentur. Gazalup. in ver. Decim.

Anglonomop.

But by our law if a man graunt 3 By the com­mō law a man may prescribe in paying a temporall re­compence in lieu of tithe. parcell of his mannor to a parson in fee to be discharged of tithes, & he maketh an indenture therof, & the parson by assent of the ordinarie graunteth to him that hee shall be quit of the tythes of his mannor for this parcell of lande, now if he be impleaded for the tithes therof he may haue a prohibition, and if this deed haue bin made from time out of minde, and he hath bin continually quit of the tythes of that man­nor he may haue a prohibition in such case, if he be impleaded: and so likewise it is if such discharge grow by reason of a composition. Fitzher. N. B. 41. G. 43. K. 8. E. 4. 13.

Nomomath.

I pray you let me know in what 5 Diuision. cases tithes are recouerable at the spirituall law, [Page 4] and whē at the commō, that so I may perceiue the diuersitie of the iurisdictiō of these Courts, which in it self seemeth to me to be somewhat perplexed & difficult, vnles it be opened & ex­planed by cases accommodate to the purpose.

Canonol.

There be two sorts of tithes, being parcel of the inheritances & possessions of laye 1. Two sorts of tithes are set downe by the canonist: some feudall, some Ecclesi­asticall. mē of the first by your fauor I will speak first, & then discend to the other: when the right of tithes is in question, because that is a meere ec­clesiasticall subiect, the church hldeth conu­sance, 2. The Church onelie holdeth conu­sans of the right of tithes. gl. in c. ex tenor. de for, compe▪ & there is an edict made by Phil. the 4. K. of France touching tithes in this manner. De 3. The King of Fraunce his edict touching tithes is set downe. cognitione decimarū non feudalium in petitorio vel postestorio, praesertim inter ecclesiasticas partes, gē ­tes nostrae se nullatenus intromittant. Rubri [...] ▪ de▪ decim. And this 4. When the question is fa­cti and not iu­ris the exami­nation of tythes may belong to a lay iudge. is according to the rule of our law de causa spi­rituali solus ecclesiasticus cognoscit vbi quaestio sit iuris. c. tuam de ordin. cogniti. but where the questiō is facti, & not iuris the examination of the cause may belong to a laye iudge. Text in Clē. dispendios. de iudicum c. te­ter. de iur. calū. c. fin. de rer. permut. but if the controuersie be mixt, and the propertie is as wel to be decided as the pos­session, the matter is to bee discussed before an ecclesiastical iudge, Abb. c. lite­ras & rubric. de iudic. num. 51. & whē tithes are leased or dimised vnto a man, he may demand the tithes before a lay iudge, vnles there be contraria fori praescriptio, as there is in the citie and diocesse of Millaine: Gemin in c. vlt. in fide for. competen. in 6. gloss. in c. vest. de loc. monet▪ c. 8. de decim. yet where the cōtrouersie is betwixt these that be meere clergy men, though it be a possessory suyte, yet it is to bee decided by an [Page] Ecclesiasticall iudge Nauar. in repet. cum cō ­tingat.. Neyther may lay men Clergie men though it be meerely pos­sessorie: yet it belongeth to an Ecclesiasti­call iudge. be compromittes of a decimall cause if the right come in question: Concil. Barel. tract. moder. de compro­mis. §. 2. gl. 1 num. 324. but such tythes as be not spiritual, but as I haue termed them before feudall, may be ordered and disposed by lay compromittees.

Nomomath.

You haue satisfied me Canono­logus touching the point of Ecclesiastical iuris­diction where spirituall tythes are to be de­maunded: Now I pray you shew me the na­ture 6. Diuision. and original of these feudall tythes, which as yet are more obscure.

Canonol.

Their nature shall appeare by 1. The nature of feudall ty­thes is ope­ned by the Canonist. their originall which was thus. Charles Martell after that he had obtained an happy victorie a­gainst the Saracens, who marching from Spaine did spoile and waste the lands, goods, and tem­ples of the French, did meane to recompence his nobles & peeres of his realme with some great reward, and that hee might testifie his li­beralitie towards his said nobles, by the con­sent of the Bishops of his kingdome, he did giue vnto them the tythes of manie goodlie Churches, taking a solemne oath that if he li­ued any while, he would make the Church a large amends for this matter, which notwith­standing hee did not: but not long after, as ( Guagni reporteth) for that sacriledge he died, and was carried to hell, and his bodie being in­tombed in the temple of Saint Dennis, within [Page 5] a few yeeres after there was seene vpon his [...]. The Cano­ [...]t [...] a strange tale of Ch [...]l [...] Mar­ [...]ll. graue a great serpent, it might be it was the di­uell in the likenes of a Serpent: but shortlie after there was neither bodie nor bones of Charles found in that place, and therefore some thought that hee was carried bodie and soule G [...]g [...]i. in v [...]. Car. Ma [...]ell. to the diuell: for that cause the wiseman hath said, it is a destruction for a mā to deuoure that which was sanctified, &c. Prouerb▪ c. 20. v. 2 [...].

Nomomath.

It is not good to enter into the counsailes of the Almightie. The Bethshamites were not vnpunished for their prying into the Arke. And the prouerbs of the heathens doe admonish vs not to bite the dead, nor to wrestle with spirits. It is not good to charge the dead with any other thing thē that which happened in their life: for whosoeuer are de­parted this life stand or fall to their Lord, who is the iudge of the quicke and dead, and I think [...] thought of Nomomath. to be but a fa­ble. the report of the serpent to be but a meere fa­ble discrediting the author, and dishonoring that worthie protector of the Christians: but what say you Codicgnostes of these matters.

Codicgnostes.

I doe not remember any thing in our lawe repugnant to that which Canonolo­gus hath aboue deliuered.

Nomomath.

What say you Anglonomophilax.

Anglonomoph.

Our law doth neyther fullie agree with that which Canonologus hath vtte­red, neither in verie many things disagree from [Page] it, as by your patience I shall at large demon­strate. Wee haue a rule in our statute-law not much differing from the edict of the King of Fraunce aboue recited by Canonolog. In decimis 5 One of the ancient sta­tutes of Eng­land is com­pared with the edict of the king of Fraunce. & mortuarijs quando sub istis nominibus propo­nuntur, prohibitioni nostrae non est locus, dummo­do decimarum illarum quantitas non ascendat ad quartam partem bonorum ecclesiae Artic. cler. c. 2. 10. H. 4. 1. Registr. 49. b.: And as to the diuersitie vsed in the Canon law where the question is facti and not iuris, and where it is 6 The Canon law agreeth with the cō ­mon, attribu­ting of the de­uision of the right of tithes to the spirituall iudge. de petitorio and not de possessorio, M. Fitzherbert hath this assertion: that if any parishioner doe disturbe or hinder a Parson or Vicar in the ca­rying away of his tithes, which is an iniurie in the fact, whereas the carriage is through the waies and passages vsed and accustomed, the Parson or Vicar may sue in the spirituall court for this disturbance Fitzh. N. B. 51. A.: for in this case the spiri­tuall Court proceedeth vnto excommunicati­on Registr. 46. b. & 47. a.: One Parson may sue a spoliation against 7 Where one parson may sue a spoliati­on against the other in the spiritual court. an other in the spirituall Court, for the taking of tithes which belongeth to his Church though they claime by seuerall patrons, and by seuerall presentments, but this is to bee vn­derstoode where the said tenth doeth not a­mount to the value of the fourth parte of the Church, for otherwise the partie greeued may haue an Indicauit because the title of the patro­nage [Page 6] may come in debate: But if they claime by the presentment of one patron thē a spolia­tion may be sued although the profits or tithes doe amount to the fourth part, or third part, or the moitie of the benefice: because in such case the title of the patronage shall not come in debate. And if a prohibition be sued here­upon, the partie may haue a consultation 2. H. 7. 12. Br. prohibit. 16. Fitzh. N. B. 51. C. 37. E. 45. B. 30. E.: and if a man haue certaine sheepe depasturing, and lying within the precinctes of the parish of N. within a yeare, the parson of that pa­rish may sue in the spirituall court for the tithe wooll of these sheepe: and if the partie sue a prohibition hee may haue a consultati­on Fitzh. N. B. 51. D.: for the suite for tithe doth properly ap­pertaine to the spirituall Courte, as by sta­tute 8 The execu­tors may be sued in the spiritual court. it is ordeyned 1. R. 2. c. 13. 24. H. 8. c. 12. 2. E. 6. c. 13.: and it appeareth by the Register of writtes, that if the pattie which withholdeth tithe make his executors and die, the executors may bee sued Registr. 48.. And if a man detaine tithes for his sheep which went in the parish of N. and were depasturing and cou­ching there so long time, if the partie die, the parson may sue his executors for these tithes in the spirituall Court. And so the Parson may sue the executors for the arrerages of tithes due by reason of certaine milnes of the testator in the life of the testator Fitzherb. N. B. 51. G. H.: And the [Page] parson by prescription may in the spirituall Court claime tythes vitularum & lacticinia­rum of the beasts pasturing in his parish, as namelie milke, butter and cheese Fitzherb. ib. & Regist. 48., and the tythes of wooll, and the tythes of honie and waxe, Fitzherb. ib. and for these hee may sue in the spi­rituall Court, and by manie authorities in our law, the right of tythes is tryable in the spiri­tual Court. 22. E. 4. 24. 38. H. 6. 21. 22. Assis. 75. But where a mā is sued for tythes of great trees aboue the age of twentie yeeres, a prohibition will lye by the statute of 45. 9. Of what trees tythe may be de­maunded by the statute of 45. E. [...]. E. 3. but of horne beames, salowes, and the like, of what age soeuer they be, being not apt for timber, tythes ought to be payed. Ploid. Com. en le case enter Soby & Mol. And the branches of trees which be priuiled­ged from tythes shall be also priuiledged: and the suit for the tyth branches of trees which are not priuiledged, shall be in the spirituall Court as well as the suit for the tythe of the trees themselues: for as Bracton saith, non pertinet ad iudicem secularem cognoscere de ijs quae sunt spiri­tualibus annexa. Bract. lib. 5. c. 2. And thus it may appeare, that as soone as the right of tythes commeth in debate, the lay Court ought to cease, and shall be out of iurisdiction: and if it may appeare that the right of aduowson com­meth in debate the spirituall Court shall be out of iurisdiction: But if the parson of N. doe lease for yeares a certaine portion of his tythes rendering a rent, hee shall haue [Page 7] an action of Dette for the rent if it be behind [...]. That the rent paied for Tythes vpon a lease for yeeres is a lay chat­tell. at the common Law, and not in the spirituall Court, because the money is a lay chattell 8. R. 2. Iu­risdict. 2 [...]. D. 5. 106.. And if the Parson take Oates, or other graine, as his Tythe: and an other taketh them awaie from him, the nature is altered, and now they are become a lay chattell, and the Parson shall haue an action of Trespas at the common Law 35. H. 6. 39.: Yea by the booke of 2. Ed. 4. if they be seuered from the ix. part, and not yet in the actuall possession of the Parson: Yet if a stran­ger carie them awaie, he may haue an action of Trespas 2. E. 4. 15. 20. E. 4. 3.: But he may not in any case dis­treine for Tythe: for there is not any land in demesne vpon which the distresse may bee made 11. H. 4. 40.. But if in such case debate happen be­twixt Parson and Vicar, so that the right of Tythes is to be tried, the suit is to be maintei­ned in the spirituall Court 35. H. 6. 39. 47..

Nomomath.

But what if Tythes be not duelie paied, what punishments are there to be inflicted by your Lawes.

Canonol.

In the demaunding Tythes, if iudgement be giuen for the demaundant, there 7. Diuision. [...]. A Precept issueth with a monition vn­der paine of excommuni­cation for the due satisfacti­on of Tithes. must a precept issue with a monition vnder paine of excommunication, if he doe not within a certaine number of dayes pay or sa­tisfie the demaundant so much Tythe. And the Law is that against such as be stubborne, Brachium seculare inuocari potest Gl▪ in verb. praemonit. in cle. 2. de iud. c. postula [...]sti. de hom [...]ci..

[Page]

Codicgn. We haue nothing in our Law con­trarie to this.

Nomomath.

I pray you shew me Canonol. the qualitie and force of Excommunication, that I may be better satisfied.

Canonol.

The Canon Law doth obserue eight 8. Diuision. 1. The degrees which the Ca­non Law ob­serueth in pu­nishing offen­ces in the Cler­gie. degrees in proceeding to the correction or pu­nishment of them of the Clergie, in punishing any offence whatsoeuer: The first is a moniti­on, vt desistant c. vni. de vit. et hone. cler. lib. 6.: The second excōmunication, si non paeniteant c. cler. arma. de vi. et hon. cler.: 3. A suspension of their bene­fice, si differant c. praeterea de vsu.: 4. The depriuatiō of their be­nefice, si perseuerent c. cum de­lic. in sin. de accusa.: 5. A suspension of their orders, or degrees, si obstinatè contēdant c. cum non ab homi. de in si.: 6. A thrusting or intruding of thē into a Monastery, or Religious house, si indurati existant: 7. Per­petuall imprisonment, si incorrigibiles existant d. c. cum non ab homi­ne.: 8. A solemne degradation in the presēce of tē ­poral officers c. non de verb. in si.. And this order of punishment is alwaies obserued, vnlesse the crime be so great, heynous, and scandalous, that this solemnitie is omitted, and then there is a summarie, and im­mediate proceeding to degradation, and to the deliuering of the party vp to the secular▪ power.

But there be two sorts of Excommunication, the lesser is not penall, but medicinall, & is pro­porcionable 2. Sortes of Excommuni­cation, are set downe by the Canonist. to that lesser thunderbolt, which the Poet describeth: Est aliud leuius fumen cui dextra Cyclopum, Sauitiae flamma (que) minus, minus addidit irae Ouid. in Metamorph.. It doth rather in some small pro­portion terrifie, then in any great measure hurt. [Page 8] Yet here a distinction is to be vsed: for either the sentence of the lesser excommunication is pronounced ab homine, and then it is medicina­ble: or els it is pronounced a Canone; as when a man is ipso facto excommunicate, for then it is penall c. medici­nalis de se▪ exco. lib. 6.. But the sentence of the great excom­munication doth anathematize, and is alwaies penall d. c. medici.. All these things may be thus resolued, either an ecclesiastical person doth cōmit some small offence, and then he is deposed, & not de­priued, but for a time suspended c. cum de­lic. de accus.: But if he cō ­mit grieuous offēces, then he may be deposed d. c. cum non ab homi.. But if he commit faults most grieuous, such as by the Ciuill law he shall suffer death for, then he may be condemned ad perpetuā carcerem, to haue imprisonment during his life c. l. de here. lib. 6.. Excom­munication is tearmed in our Law mucro Epis­copi: and therfore it is said in the Canon law foe­lici mucrone Episcopi sacerdotum piacula resecen­tur 16. q. 2. c. visis in si.. But the vtmost punishmēt of a lay man for not paying of Tithes, or other misdemeanour punishable by the Canon Law is excommuni­cation onely: after which issueth a writ of Ex­communicato capiendo at the Common Law.

Anglo.

It is true, but we haue compulsarie Sta­tutes 3. The com­pulsorie Sta­tutes of pay­ment of Ti­thes are men­tioned by the Barrister. made for the paimēt of Tithes: As name­ly the Statute of 27. H. 8. ca. 20. which is, That if the Ordinary of the diocese &c. do for any contēpt, contumacy, disobedience &c. of the party not pay­ing his lawfull Tythe, make information or request [Page] to any of the Kinges most honorable Counsell, or to the Iustices of the peace of the shire &c. to order or reforme any such person &c. that then he, or the Kinges said honorable Counsell, or such two Iustices of peace, whereof one to be of the Quo­rum, to vvhom such information or request shall be made, shall haue full power and authoritie to at­tache the said person &c. and to commit him to vvarde, there to remaine vvithout baile or main­prise, till he haue found sufficient suertie &c. to giue due obedience to the proceedings, decrees, and sentences of the ecclesiasticall Court &c. And the like Statute was made 32. H. 8. cap. 7. And by the Statute of 2. Ed. 6. cap. 13. it is prouided, That if any person carie avvay his Corne or Hay, or his other prediall Tythes, before the Tythe thereof be set forth: Or vvillingly vvithdraw his Tythes of the same &c. that then vpon due proofe thereof made before the spirituall Iudge &c. the partie so carying away, vvithdrawing &c. shall pay the dou­ble value of the Tythe so taken, lost, vvithdrawen &c. beside the costes and charges of the suit &c. And as to these Tythes which Canonol. hath aboue called feudall which wee call impropri­ate, 4. Impropri­ate Tythes at the common Law, are com­pared with feudall tythes. it is ordeined by the Statute of 32. H. 8. c. 7. that they may bee demaunded by a Praecipe quod redd [...]t.

Codign.

Our lawe in all the matters aboue­said consenteth with the Canon-lawe.

Nomomath.

But what if a man will not pay his [Page 9] Tythes in the time of vacation of a bene­fice.

Anglonomoph.

Then the Ordinarie ex officio 9. Deuision. may cite him to paie them Registr. 51. Fitzherb. nat. bre. 52. G.. 10. The Or­dinarie ex of­ficio may cite men to pay Tithes.

Canonol.

That seemeth not to be repug­nant to our Law Goodal. lib. de lib. Eccles..

Codign.

Nor to ours.

Nomomath.

Now that you haue proceeded so farre in matters of iurisdiction, I pray you let me mooue you for other doubtes concer­ning the same point. Whether is the crime of Heresie subiect to the censure of the Canon Law onelie, or to the iurisdiction of all your Lawes, I pray you shew me how, and how 10. Diuision. farre forth it is punishable.

Canonolog.

There be two thinges which make Heresie: First it must respect and con­cerne the Articles of our Faith: Secondly there must be a stubborne, and pertinacious af­firmation: for there must be error in ratione, and pertinacia in voluntate Cle. 1. §. porro de sum. trini.: for where there is error, but not obstinacie, there the partie can 1. Two Sorts of Heretikes, formatus and suspectus. not be said to be formatus, but suspectus haere­ticus, and then he holdeth the error inquisitiue, but not adhaesiue. But he that is formatus haere­ticus is thus punished in our Law: he is excom­municated, he is bereaued of all ecclesiasticall promotion, he is deliuered vp to the secular power, and all his goodes and landes be con­fiscated, and taken away from him c. ad abo­lend. de hae­retic. c. Excommu­nicamus de haeret. et c. se­cundū leges eo tit. lib. 6.. But in two [Page] cases their landes are reserued, and left to their children: First, if they reueale their fathers heresie c. Vergent. in sen. de haeret. c. vt inquisit. de haere. lib. 6., 2. If they haue been so long in pos­session 2. In what case the wife and children of Heretikes shall enioy their landes. that they may prescribe c. vt officium de haere. lib. 6.. But the dow­rie of the wife of an Heretike is not forfei­ted, vnlesse she do marie him knowing of the heresie c. de creu. eo. tit. lib. 6..

Codicgn.

Our Law agreeth to that which you haue said: And further prescribeth an other punishment, which you haue not men­cioned against such offendors: for it saith, that they shall be burnt aliue l. quisquis C. ad l. Iul. maiest. Et c. vt inqui­sitionis de hae­retic. lib. 6..

Nomomath.

Yet I haue read in a learned Ci­uilian, that in the whole bodie of the ciuill 3. Heretikes by the ciuill Law not pu­nishable by fire. Law it is not recorded, that Heretikes should be put to death by fire: and therefore he is somewhat bold with the Canonistes, and cal­leth them igniuomos canonistas Alber. Gen­til. lib. lecti. 2..

Codign.

Indeed our Law as to that point is wholie grounded vpon the Canon c. ad abo­lend. de hae­retic..

Canonolog.

It is not grounded vpon the Canon, for we referre the matter wholie and finallie to the secular Magistrate: as your writ de Haeretico comburendo Anglonomoph. doth testifie.

Anglonomoph.

Indeed in our Realme in aun­cient 4. The Cano­nist poasteth the punish­ment of He­retikes to the cōmon Law. time, he that was to be burnt for Heresie, was first to be conuicted of the same before the Bishop of the diocese &c. and ought to abiure it: And if he did after relapse into it againe, [Page 10] and were thereof condemned in the said Dio­ces: then he should be sent to the secular power to doe with him whatsoeuer should please the king Fitzherb. nat. bre. 269.. But afterward by the Statute of 15. of king Henry the eight 15. H. 8. cap. 14., it was ordeined, that he who had once abiured heresie, and was re­lapsed, 5. The pro­fessor of the common Law bandeth back againe the pu­nishment of Heretikes to the Canon Law. and was conuicted hereof before his Ordinarie, that notwithstanding the Ordinarie ought not to commit him to the laie power without the kinges writ first purchased here­vpon to burne him.

Nomomath.

Then I perceiue the whole act both of adiudging to the fire, and of sending the partie to receiue that punishment, depen­deth now wholie vpon the Canon Law, and the sentence of the Bishop framing the style of his iudgement according to the Canon Law.

Canonol.

The secular power putteth him to death: but we are discharged of it.

Nomom.

Nay verily, no more then Nabuchad­nezer can be acquited of exposing the life of Daniell to hazard: for he might as well haue ex­cused himselfe and said, that he did not meane to kill him, but did onelie commit him to the curtesie of the lyons: And as he did not perso­nally put him into the caue, & within the grate: so neither do ye personally thrust these which you tearme Heretikes into the fire, nor bind thē vnto the stake. Nabuchadnezers punishment [Page] I haue reade of, which was grieuous and horri­ble: But I doe not reade of the admittance of such excuse. And when the Iudge of Iudges shall examine such firie proceedings, it will be in vaine to excuse themselues by the fire, and the chaine, and the stake: or by the Shirife and the Bailifes, if the Iudgement haue been wrongfull and vniust. It will be like the excuse that Phillip king of Macedonia made, when he was charged with the expugnation and ouer­throw of the Citie of Chius: Nequè ego Chium expugnaui, sed Prusiam socium & amicum expug­nantem adiuui Liuius lib. 32.: for so Prusias might haue said, that he did it not, but onelie encouraged his men to do it. So Brutus and Cassius might be excused from killing themselues, because they did non inflict the wound, but did will and commaunde others to doe it Flor. lib. 4. histor.. After as bad a sort Dido cleareth her selfe of her death, though not any waie to be cleared:

Praebuit Aeneas et causam mortis et ensem:
Ipsa sua Dido concidit vsa manu
Ouid. Fa­stor. 3.
.

But I will insist no more of this matter. Now 11. Diuision. resolue me, whether any Church-land be de­maundable at the Spirituall Law.

Codicgn.

Religious houses and landes be­longing 1. What things may be tear­med Church-land by the Ciuill Law. vnto them deputed to holie vse are comprehended in our Law vnder the name of Church-land or lyuing: And all landes which belong to Oratories or priuate Chap­pels, [Page 11] annexed to the particular houses of laie men, by the authority of the Diocesan, and the landes belonging to them are compri­sed vnder the name Church-land or Church liuing C. de epis. & cler. in lib. Orpha.: Likewise that plott or parcell of ground in which a dead man is buried, or wherein his head or any part of him is buried becommeth consecrate, and religious, and therefore cannot be morgaged nor pledged ff. de reli. & sump. fune. C. quae res ob­lig. poss. l. 1.: and of such landes our lawe taketh notice and holdeth full iurisdiction.

Canonol.

But in strict reason such things do belong to the iurisdiction of the spirituall court 42. Disti. oratorium..

Anglonomoph.

These matters are diuersly taken in our law: for in action of trespasse con­ceiued by the Vicar against the Parson for the breaking of his close, and for his lambes taken away, whereas the close supposed was the Churchyard parcell of the vicarage of the 2 Of Church­yards the spi­rituall court shall hold iu­risdiction by the common law. plaintife, it was held by the better opinion that in this case wherein the close supposed in the writte is admitted by both parties to bee a churcyard, the spirituall Court onely should hold iurisdiction 13. R. 2. iurisdict. 19.. And an assise likewise was brought of a house against a Parson, who plea­ded in bar, that he was Parson of P. and that the house demanded was parcel of his said church, from time out of mind, and that there was se­pulture [Page] of deade persons there: wherefore Perseis opinion was that the court temporall ought not to holde plea in this case 44. Ass. pl. 8.: but if 3 The right of gleabe land is triable by the common law. the Parson of A. and the Parson of B. do con­tend in suite for a parcell of lande, the one claiming it to bee his gleabe, the other his: it hath beene held in this case, that the spirituall court shall not hold iurisdiction 19. H. 6. 20.. And Brac­ton likewise affirmeth, that a thing giuen in frankalmoigne remaineth laye fee Bract. li. 5. c. 16.: and by 4 Lands deui­sed not sub­iect to the iu­risdiction of the ecclesiasti­call court. our lawe a prohibition lyeth for chaunteries, chappels, prebendes, and vicarages Fitzh. N. B. 40. G. & 35. b.: and if a man deuise lands or tenements deuisable, the partie to whome the deuise is made shall not sue in court spirituall, and if he doe the other shall haue a prohibition: and therefore as Bra­cton saith, the deuisee may enter without the 5 Suites for chattels reall must be in the spiritual court. licence of the executor Bracton vbi supr. Perk. tit. deuis.: but if a deuise bee made of goods, and chattels reall, as of a lease for tearme of yeares, or of a warde, there the suite must be in the spirituall court Fitzh. N. B. 43. G.: and if a termor of certaine land doe deuise his croppe and dye, the spirituall court shall hold plea for this croppe 8. H. 3. pro­hibit. 19.: and if a man deuise corne or o­ther goods to a man, and a straunger will not suffer the executor to performe the testament in this point, they may sue the stranger here­upon in the spirituall court: but if a man take goods deuised out of the possession of the [Page 12] executors, the law is otherwise, for then they shal haue an action of trespasse at the common lawe 4. H. 3. prohi­bit. 28.: but if a man sue another in the spiri­tuall court for a rent reserued vpon a lease of tithes or offerings, a prohibition wil lie in such case because it is a laye rent 44. E. 3. 32.

Nomomath.

Let me now know Canonol. whē 12. Diuision. a man graunteth to one ius patronatus of the church of Dale, if this title bee controuersed in question, whether shall the ecclesiasticall court or temporall hold iurisdiction.

Canonolog.

Surely I thinke it is determina­ble 1 That ius pa­tronatus by the Canon law is deter­minable in the ecclesiasticall court, and that it passeth by the word ecclesia. in the ecclesiastical court, because the right of patronage may passe by the word ecclesia: as if a man said vnto me, dono tibi ecclesiam S. Petri in Dale, the aduowson of the church doeth passe c. quod au­tem de iur. patronat..

Anglonomop.

The word ecclesia is otherwise taken in our law, for it is most commonly vsed for a place wherein baptisme and the sepulture of mens bodies is celebrated 34. E. 1. quar. impedit. 187.. And M. Fitz­herbert saith, that by this word ecclesia is meant onely a parsonage Fitzh. N. B. 32. G.: and therefore if a present­ment bemade to a chappell as to a church, by the name of this word ecclesia, this doth change and metamorphize the nature of it, and ma­keth 2 The diuers significations of the word ecclesia at the common law. it presently a Church 17. E. 3. 58. 47. E. 3. 5. & 21 13. H. 4. Briefe. 870.: and because by this word (church) is meant a church parochi­al, therfore if a man haue an oratory or chappel [Page] within his mannor of Dale and he giueth part of the demesnes of the said mannor to a Chap­leine for life to sing there, yet hee hath not by this made it a Church, but it remaineth still an oratorie, and his freehold: for here was no ef­fectuall operation of lawe to force such a chaunge 36. E. 3. 13.. But if a writte bee brought of a Church in Dale, and in Dale there bee both a Church, and a Chappell, yet the writte shall stand good for the reason aboue shewed 20. E. 3. Brief. 684. 13. H. 6. 4. 9. E. 3. 451. 22. E. 3. 2. 8. H. 6. 33.: and sometime it signifieth the Church which con­sisteth of stones, walles, and roofe 8. H. 5. 4. Rolf.: and some­times the demesnes and profits of the benefice 45. E. 3. 4.: but verie seldome, if at any time it is vsed for ius patronatus. But if as you say, the patro­nage shold passe by these words dono ecclesiam: in all reasonable vnderstanding the patronage is to be distinguished frō the Church or bene­fice. And therefore Pollard 12. H. 8. 12. H. 8. 7. Prior. de Hun­ting. c. doth well 3 The interest of the patron, parson, and ordinarie in the church is shewed. distinguish the interest of the parson, patron & ordinarie as in a seuerall thing: the parson (saith hee) hath a spirituall possession in the church: the ordinarie hath charge of the church to see the cure serued: the patron ius presentandi to the church; which being well weied doth clearely bewray the imbecilitie, & in consequence of your proposed argument Canonol. neither can you by any solide reason of law entitle the spirituall court to iurisdiction in this case, as I shall hereafter shewe.

[Page 13]

Nomomath. What say you of this matter Co­dign.

Codign.

Wee rely wholy for these matters vpon the Canon law which in these pointes is verie pregnant and copious.

Canonolog.

It is so in deed: but by that lawe ius patronatus is meerely spirituall, and not tem­porall, as Anglonomoph. would perswade: for it is wholly after a spirituall manner carried & ordered: for though the patronage do arise of three things the foundation, the edifying, and 4 What things do make a patron by the Canon lawe. the endowment 26. q. 7. filijs ca. quicunque 18. q. 2. Abbat. according to the ancient say­ing patronum faciunt dos, aedificatio, fundus: yet it is no temporall thing, because though a man bee condemned, and his goods bee confisca­ted, yet hee shall not lose his right of presen­ting Gl. est. in ver. subiect. § rursus in fi. c. pastor al. in Cle. de re iudi.: neyther is this repugnant, that to a Church parochiall hee may present, to a Church collegiate the lawe is, that though his assent goe not to the election of the partie who is to be the gouernor: yet our law com­mandeth that after the election it should bee registred c. nobis de iur. patronat.. Yet it seemeth to be spirituall, be­cause if a laye patron doe present one, and after will varie and present another: nowe it is left to the arbiterment of the Ordinarie, which of them hee will admit 2. dist. c. ec­clesiastic. et c. quod autem de iur. patronat.: and hee which is so refused by the Bishop, hath no remedie against the second presentee, but he [Page] may haue remedie against the Bishop for his vniust refusall or wrongfull delay: and his re­medie in this case is a duplex querela against an inferior Ordinarie: and this must be handled in the spirituall court Pastoralis co. tit..

Anglonomoph.

Yea but the reason of that is giuen in our lawe, because the right of patro­nage shall not come in debate Regist. 55..

Canonol.

This is petere principium, but let me proceed. There is such a mutuall correspon­dence betwixt the patron & the Church, that they may not bee seuered either in gouern­ment, or in iurisdiction: for though the patron hath aliquid honoris, as we said, because he is to haue the first place in the procession 16. q. 7. piae mentis.: yet hee hath also aliquid oneris, for he is bound by our lawe to defend the Church from all oppressi­ons 17. q. 7. filiis.: and in that regard if he fall into pouer­tie, he is to be mainteined de bonis ecclesiae Praealleg. c. filijs..

Anglonomoph.

These circumstances do not inferre the conclusion which you labour for. It shall appeare to you Canonologus, by our law and by verie strong reason, that the right of pa­tronage 5 Ius patrona­tus is one of the proper obiects of the common law. or the aduowson of the Church, is one of the proper obiects of the common law. First it is a rule with vs, that if a man be sued in the spirituall court for a laye fee, a prohibition will lye, that is, for lands and tenementes as M. Fitzh. well expoundeth it Fitzh. N. B. 40. I.. Now that an ad­uowson [Page 14] is a tenement, & lyeth in tenure, may 6 That an ad­uowson lyeth in tenure. by seuerall authorities be auouched: and ther­fore a tenure ought as well to bee found by of­fice of an aduowosn, as of a mannor 14. H. 7. 28. [...] Bri. 17. E. 3. 10.: and a lease for yeares may be made of an aduowson, and if the lessee alien in fee, this is a disseisin to the lessor ▪ 7. E. 3. 11.: and 15. H. 7. all the Iustices agree, that an aduowson lyeth in tenure 15. H. 7, 8.. And for that cause, if one hold and aduowson of the king, and graunt it to another without licence, the grauntee shall pay a fine 21. E. 3. 31. 20. E. 3. Estop­pel. 187.. And generally vpon any surmise, that a man is sued in the spi­rituall court for a temporall thing, a prohibiti­on will lie Fitzh. 43. h.. Now the aduowson is temporall, though the admission & institutiō be spiritual.

Nomomath.

Let me aske you further this que­stion: 13. Diuision. if a man sweare to me that he will make me a feofement of certaine land before such a day, and he doth it not, whether may I sue him in the spirituall court pro laesione fidei.

Anglonomoph.

No: for if you do, a prohibiti­on 1 Punishment pro laesione fidei concerning a temporall acte, is not to be adiudged in the ecclesi­asticall court. will lie by our law, because the acte which is to be done is a temporal acte, & is to be tried by the commō law 38. H. 6. 29. Fitzh. 43. D. 2. H. 4. 15. 24. E. 1 Br. praemuni. 16. D. S. lib. 2. c. 24.: and if men be sworne to giue true euidence to a iurie, and they doe so, whereupon certain persons be endited of some misdemeanor, if they which be endited do sue them that gaue euidence against them in the spirituall Court for this diffamation doone with an oath, they may make a prohibition Fitzh. N. B. 42. F. 11. H. 4. 88. prohib. 12.: [Page] but if any periurie be committed in a spirituall 2 Periurie in an ecclesiasti­call court, pu­nishable in an ecclesiasti­call court. court, there the spirituall court shall haue iu­risdiction Stat. de cir­cumspect. agat. 13. E. 1. 5. Eli­zab. c. 23. &c. 9.: but the Ordinarie in temporall cases maye punishe the partie which hath committed periurie ex officio, though not at the suite of the partie 20. E. 4. 10.: and if a woman haue ti­tle to sue a Cui in vita, and she maketh oath to the tenant of the land, that she will not sue a­ny cui in vita against him, if after she sue a Cui in vita, and thereupon the tenant sueth her in the spirituall court pro laesione fidei, shee may haue a prohibition, because the oath toucheth a temporall thing, namely land Fitzh. N. B. 42. [...]. 4. H. 3. prohibit. 19. Bracton. lib. 5. c. 2.. And if a man sweare to one that hee will pay to him twentie pound which he oweth him at a certaine day, and at the day hee fayleth of the paiment, hee may not now be sued in the spirituall court for the periurie, because an action of debt lyeth at the commō law for the principal 22. E. 4. 11. H. 4. 88. prohib. 12.. But 34. H. 6 it is saide, that if a man buy an horse for fiue pounde soluend. such a day, and sweareth to make paiment at the day, but when the day is come fayleth of payment, an action of debt lyeth at the common lawe, and an other at the spirituall lawe pro laesione fidei, and a writ of prohibition lyeth not because they be two distinct thinges 34. H. 6. 30 Br. prohib. 2.: yet 2. H. 4. is that a prohibi­tion lyeth in such case 2. H. 4. 10..

Canonolog.

But Lindwood sheweth that a [Page 15] libell may be so framed, that no Prohibition will lie in your last recited case: as namelie, the li­bell may be, ( That the partie hath damnablie broken his oath, pretending that he was not bound by it Lindw. in capit. aeter. sanctio. verb. periur..

Anglonomoph.

That is but a weake support 3. Linwoods authoritie tou­ching punish­ment pro l [...]sio­ne fidei in tem­porall matters at the ecclesi­asticall Law is not admitted. of the spirituall iurisdiction: for it is one thing to be punished for periurie, an other for his irreligious pretence. And surelie I take it to be agreeable to all Lawes, that pretenses and in­tents are not punishable, but onelie in crimine laesae Maiestatis. And a man may sue a Prohibi­tion directed to the Shirife, that he shall not permit, nor suffer the Queenes lay subiectes to come to anie place at the Citation of Bishops, ad faciend'aliquas recognitiones, vel sacramenta praestanda, nisi solùm in causis matrimonialibus et testamentarijs. And M. Fitzherb. thinketh that 4. The Barri­ster disproueth the general ci­tations of Bi­shops ad sacra­menta prestan­da by the com­mon Law. these generall Citations, which Bishops make to cite men to appeare before them pro salute animae, without mentioning any speciall cause is against Law Fitzh. nat. bre. 41. A..

Nomomath.

Why may they not vse such generall Citations, as well as a Iustice of peace 5. Nomomathes encountreth him in this point. by your Law may make a precept to bring one before him, to aunsweare to such things as shall be obiected against him without shewing any speciall cause Crompt. Iust. p. 131. et 132.. And if by your Law they can receiue no oath but onelie in matters Matri­moniall and Testamentarie, then it must needs [Page] be intended, that though their processe be ge­nerall ad sacramenta praestanda, yet it is specially meant of Matrimoniall or Testamentarie cau­ses: For I remember a good rule in the Canon Law to this purpose: Quando constat de lege, sufficit generalis allegatio 28. q. 1. sicut enim in si.. But what saie you to this matter of oathes Codicgnostes.

Codicgn.

Our Law differeth little or nothing 6. The Ciuill Law agreeth with the Ca­non, in mat­ter of Oathes. from the Canon law in the discourse of oathes. And as the Canonistes, wee make two sortes of Oathes, Conuentionale and Iudiciale: Conuen­tionale, or Promissorium, is when we sweare de futuro that we will giue some thing, or do some thing &c Bartol. in l. si quis ff. de si d [...]nstrum.. Iudiciale is when the Iudge for the triall of the truth of a controuersie, and the in­fourming of his owne conscience vrgeth the partie to take an oath ff. eo. tit. l. ius iurand.. Of both these riseth an action triable wel enough by the Canon Law: for in this matter the Canon is the sterne and motiue of our iudgements: and therefore we hold the rule of the Canon Law firmely: Prae­stans et recipiens iuramentum, contra Canones pu­nitur Gl. verb. paena. capi. grauis. de censi..

Nomomath.

Well, I will trouble you no fur­ther about questioning of things belonging to seuerall iurisdictions, but will now passe to in­quire somewhat of such thinges whereof an Action of the case will lie.

The second Dialogue.
Of Actions vpon the Case.

NOnomath.

I haue some time mer­uailed Codicgn. wherefore an Acti­on vpon the case, which you tearme actionem iniuriarum, should not haue a speciall name, aswell as other actions, when as at the Common Law euery action beside this hath his speciall name: As an action of Dette, of Accompt, of Wast, of Detinue, of Couenant, &c. And in your Law there is 1. Diuision. Actio ex stipulatu, actio empti, actio depositi, ac­tio de pauperie &c. I pray you therefore let me know the reason hereof.

Codicgn.

What is more ebbing and flowing then mans inuention: for some things it hath wordes too many, for some it wanteth names: Therefore Iuuenal, when he sought for an apt name for that age which ensued the fower fa­mous ages, being this last age of the world, and worse thē the yron age, he nameth it by giuing it no name, (for his inuētion could not find out any proper appellation) and thus resolueth:

— quorum sceleri non inuenit ipsa
Nomen, et a nullo posuit natura metallo.

And because our sage Maisters of the Law could not deuise as manie seuerall names, as there be seuerall iniuries: for what Dictio­narie could conteine so many names? and be­cause the name of the signe should be ample, [Page] and large enough for the thing named or sig­nified: 1. The rea­son is shewed wherefore ac­tio iniuriarum hath so gene­rall a name at the ciuill Law. therefore they deuised that actio iniu­riarum might serue for all wrongs, for which they could not frame particular names.

Anglonomoph.

Indeede as D. Stephens his water was fit for manie diseases, and yet had neuer any speciall name, but was generallie 2. The Barri­ster compa­reth an Ac­tion vpon the case at the common Law to D. Stephens his water. tearmed Doctor Stephens his water: so likewise an Action vpon the case stretcheth as a remedy against manie offences: Yet it hath no other name then an Action vpon the case. And it is therefore so tearmed, because euerie mans case must be in that action speciallie and at large set downe: for in that action the writ ought to comprehend the speciall matter, as well as the declaration 7. H. 6. 47.: Wherfore in an Action vpon the case brought against one who was reteined to buie a Manor for the plaintife, which he after purchased for himselfe, in deceit of the plain­tife: and the plaintife did not shew of whom the Manor should be bought in the writ, but onelie in the declaration, the writ was aba­ted 16. H. 6. Ac­tion sur le case 44. 48. E. 3. 6. Brief 627. 33. H. 6. 26. 11. H. 6. 2. 22. H. 6. 53..

Nomomath.

I pray you satisfie me in this: If 2. Diuision. a man be enterteined, or lodged in an Inne, and some of his goodes be taken from him out of the Inne by a straunger, whether may he haue an Action vpon the case against the Inne-keeper.

Anglonomoph.

Doubtles he may, if it were [Page 17] a common Inne in which hee was lodged 2. H. 4. 7. 5. Mar. 158. Dyer.. And if the partie so preiudiced doe bring an 1. An Action vpon the case lieth against the keeper of a cōmon Inne if goodes be imbeasiled. Action vpon the case against the hoast, it is no plea for him to saie that the plaintife did not deliuer any goodes vnto him: or that the plain­tife himselfe had the key of the chamber. And an Elegit hath been awarded in such case of the land, which the defendant had the daie of the iudgement giuen, and not the daie of the writ brought. And a Capias ad satisfaciendum lieth not, because it was a laches, and no wrong 42. E. 3. 11.: And therefore the wordes of the writ be pro defectu ipsius B. Fitzh. nat. bre. 94. B.: But the opinion of Hill, is 11. H. 4. that if the Inne-keeper in such case doe notifie vnto the guest, that he can not attende vpon him, and notwithstanding he will needes be harboured there at his perill, the Inne-kee­per is discharged 11. H. 4. 45. per Hill.. And 22. H. 6. the difference 2. If a stranger lodge with me by my consent, and do imbea­sill goodes, the Inne-keeper shall not be charged. is taken, that if a man doe lodge in chamber with me by my consent meerlie, and not by the appointment of the hoast, and he robbeth me, the hoast shall not be charged: Otherwise is it if he be harboured there by the hoast. And if my seruant robbe me, the hoast shall not bee 3. If my ser­uant imbesill my goods, the Inne-keeper shall not be charged by the common Law. charged 22. H. 6. 21. per Curiam.. And 39. H. 6. it is said, that an Action vpon the case lieth against the Inne-keeper, if he will not lodge a man; and the Constable may enforce him thereunto. But Danby there holdeth, that he is not bound to giue bread (or prouander) to his horse without present mo­ney [Page] paied in hand 39. H. 6. 18..

Codign.

By our Law, if thorough the neg­ligence 4. By the Ciuil Law the Inne-keeper is to be charged with action, if his seruants steale goodes. of the seruants which waite, or attende in the Inne, if any thing be stolne out of the chamber of the guest by any such seruants, the Master or Inne-keeper himselfe is to be impea­ched by waie of action, and he whose goodes are stolne may recouer double dammages a­gainst him ff. si ad vers. nan. l. 1▪: because the receit of such goodes into the Inne is an implicatiue promise, that the goodes shall be safe ff. furt. adu. nan. can. sta. l. 1.. So likewise if a man haue 5. If through the default of the Master of the ship goods be stolne, the owner of the ship is to make recompence. a Ship wherin he vseth to transport & conuey men or goodes into foreine nations, and hath appointed a Master of the said ship, by whose default or wilfull offence the goodes of some that are in the ship are imbeasiled or impaired, an action in this case will lie against the owner of the ship ff. de exercit. act [...]. l. 1.: for the Master of the ship is he cui totius nauis, anchora, et cura commissa est ea. l. 1. §. Magistrum.. And in the Tertorike or Almaine language, such a person is called by the name of Stir-man: and the owner of the ship is therefore in this case charged, because he prefected him, and made him Master of his ship ea. l. 1. §. non autem., and because to him the dailie profites, rents, and gaines of the ship doe appertaine and come ea. l. §. ex­ercitatorem..

Canonolog.

I doe not remember any thing in our Law contrarie to that which you haue said.

Nomomath.

I would be resolued of this Co­dignostes, 3. Diuision. [Page 18] whether according to your Law in all contractes there must be a mutuall conside­ration on both sides.

Codicgn.

It is not necessarie, that there be 1. By the Ci­uill Law it is not necessarie that there be mutuall con­sideration in contractes. mutuall consideration, but so there be a mu­tuall consent, it is sufficient in our Law, and it is therfore called a contract: because by coue­nanting diuersae voluntates in vnum contrahun­tur Instit. de actio. §. 1. Gazal. verbo contractus.. D. Baldus noteth, that there is a triple kind 2. Three sorts of contractes by the Ciuill Law. of contract. A proper contract, an improper contract, and a most improper contract. The proper contract, is when both parties are vltro 3. What is a proper con­tract by the Ciuill Law. citró (que) bound l. Labeo. § contrac. ff. de verb. signif.: As if I buy of you a Horse for fiue pound, I am bound to giue you the mo­ney, and you are bound to giue the horse vnto me. An improper contract, is when one of the 4. What an improper con­tract is by the ciuill Law. parties onelie is bound by the contract: As in a gift of goodes, or chattels, the donour onlie is bound to deliuer the thinges giuen l. Aristo. ff. de donat. can­mor.. And so when one lendeth to an other, he which bo­roweth is only bound ad tantundem reddendū ff. si cer. pe. l. 2.. The most improper contract, is when neither 5. What a most impro­per contract is by the same Law. of the parties is bound, but a bond or contract is dissolued and defeated: As when a man sel­leth to an other a siluer Cup for three poundes, to be paied at such a day, & the vendour deliue­reth the cup to the seruant of the vendee, who presently runneth from his Master: so that the vendee sueth the vendor for the cup, & the ven­dor sueth him for the money, if depēding these [Page] two seuerall suites, both the parties doe after friendlie agree, that suites shall surcease betwixt them, and that the one of them shall be quite against the other, this transaction as we tearme it is a contract, though most improper Saly. in lib. siue apud acta. C. de trans­act.. Like­wise when a man will acquite one of money which he oweth vnto him vpon a contract, which in our Law is called acceptilatio: as when I saie vnto one with whom I haue bargained: Haue not you receyued of me all the money which I did owe vnto you by way of contract? and he aunsweareth: I haue receyued it all, whereas in truth he hath not receiued a penie of it: this is a good acquitall, and one of the most impro­per contractes Instit. qui. mo. tol. ob­lig. et in l. vbi pactum. C. de transact. per Bar..

Anglonomoph.

Our Law medleth with no contractes, but such as you haue tearmed pro­per contractes: For our Law requireth in all 6. The Com­mon Law ad­mitteth no con­tracts, but such as be proper. contractes a mutuall consideration, and one part of the contract challengeth and begetteth the other. And therefore the case was thus: The seruant of A. was arrested in London vp­on a trespasse, and two which did know his Master did baile him: and after A. promised them for their friendship to saue them harme­lesse of damages and costes, if afterward they were charged: And so it befell, that after­warde they were charged: yet it was helde that the Action vpon the case would not lie vppon the promise, because there was no [Page 19] consideration, for the bayling was of their owne head, and was executed before the assumpsit: But if the Master had requested before, and assured afterward then perhaps the law would haue beene otherwise: as in con­sideration that you haue married my daughter at my request I will giue you an hundred pound. This is a good consideration because the marriage did ensue my request, and in like sort land may be giuen in frankemarriage after the espousals 10. Eliz. 272. Dy.. And so wheras Oneley brought an action vpon the case against the Earle of Kent and his Ladie, and declared vpon an as­sumpsit of the Ladie, whilest she was sole, that in consideration that he had taken great paines and had expended 1500. li. about her businesse and suites, that she would repay the 1500. li. and beside that twentie pound more. This was held a good consideration 19. Eliz. 356▪ Dy. Oneleys case.: and 29. Eliz. the case was such: A man being found in arrera­ges vpon his account did promise to the dettee that if he wold forbeare him per paruū tempus, that hee would pay him the money without further delay, and the dettee did forbeare him accordingly, and after vpon this assumpsit brought an action vpon the case: and it see­med to three of the Iustices of the common pleas, that the action would not lie, because that paruū tempus was no good consideration, neither could it be beneficiall to the partie: but [Page] one of the Iustices saide, that if the dettee had brought an action vpon the case without any consideration alleadged, and had proued the dette, that would haue sufficed for that had beene an assumpsit in law: and that there must be a reciprocall consideration in such case may most clearely and euidently be proued, by 44. E. 3. A writte of dette was brought, and the plaintife declared that the defendant did owe vnto him fiue poundes for a house which hee had sold vnto him: the defendant said, that there was a couenant betwixt the plaintife & the defendant, that the pr shold remoue the same house at his owne costs & charges within a certaine day to a certaine place, and when he had so remoued it, that then the defendant would pay him his money, and that the house (or the frame of the house) was not as yet re­moued: and this was held a good plea 44. E▪ 3. 28.. And where two considerations are to be accompli­shed, the performance of them both is to bee auerred: Wherefore the case was, that in an action of trespasse the defendant pleaded a concord, that he before a certaine day should make certayne windowes, and should paye certaine money, and he said that he payed the money by vertue of the concord before the day, and demaunded iudgement si actio &c. But hee spoke nothing of the making of the windowes, and the plaintife replyed, Nul tiel [Page 20] accorde, and it was for the plaintife, and it was held by all the court a ieofaile. For when they accorded that the defendant should doe two things, the concord is not performed, vnlesse both be done, and so the matter of the plea is not good, and therefore the replication can­not make it good 6. H. 7. 10.: And if I buy a horse of you for sixe pound, you may deteine the horse till I haue payed you 10. E. 4▪ 1 [...].: and so if one buy an horse of an other in Smithfield and do not pay to the vendor money presently, but doth one­ly promise it, the vendor may sell it to another immediately, and the other can haue no reme­die against him: for otherwise he may be com­pelled to keepe his horse in perpetuum against his will 17. E. 4. 1. per Choke.: And to this agreeth the booke of 21. H. 7. where it is said, that in the bargaine it is implyed, that the bargainee shall pay the money presently, otherwise hee shall not haue the thing solde; but if it were for a certaine day, the money were not to bee payed before the daye, because the bargainor hath giuen vnto him expresse libertie to pay at any time within the time prefixed 21. H. 7. 6.: And so is the booke of 28. H. 8. that a contract or bargaine is not good without present payment, vn­lesse there bee a certayne day limited, so that one of the parties may haue an action of dette for the money, and the other a writte of Detinue for the wares 28. H. 8. 30▪ Dy.: and if a man [Page] assure and promise to one that he will make for him certaine waines for carriage &c. and hee taketh parcell of the money before hand to do it, and after he doth it not according to his as­sumpsit, the other may haue an action of tres­passe vpon his case Fitz. N. B. 94. A.: so an action vpon the case was brought because the defendant pro­mised to the plaintife, that if the plaintife wold discharge I. S. of execution, in which hee was at the suite of the plaintife, that then he would pay vnto him his dette, and in truth the pro­mise was made to the wife of the plaintife, to which the husband agreed, and thereupon he discharged the partie, and it was ruled by the court, that the action was maintenable because a feoffement of lands or gift of goods is auaile­able to the wife if the husbande doe not disa­gree, so it is of an assumpsit 27. H. 8. 24. 25..

Nomomath.

Trouble your selfe no further Anglonomoph. let me aske this one question of Codicgn. whilest it resteth in my mind. Sup­pose that I haue hyred a ship or gallie to trans­port my family, and some of my houshold 4. Diuision. goodes, by lawfull permission, and I agree to pay for the carriage of euerie poll or person of them a certaine summe of money, admit that three or foure of them die in the ship, whether shall the owner of the shippe haue the entire summe of money, or shall it bee apporcioned for them, that be dead before they be brought [Page 21] to the land Ludou [...]c. de Rom. in sin­gulari..

Codicgn.

To cleare your doubt this diuersi­tie must bee vnderstood: if the owner of the 1 That no fare ought to be payed for them that die in a ship, if the master of the ship did as­sume to bring them safe to shoare. shippe did make a couenant with you, that he would bring them safe to such a place, then surely you ought to pay no fare for them that bee dead Id. in d. sin­gu. ad regu. praedict.: but if the couenant were to take them into the ship, and to carrie them to such a place, thē the law wil be otherwise: and so if a 2 If a child be borne in sea­faring nothing is to be paied for that child. child be borne in the ship whilest it is vpon the sea, there is nothing due in respect of that child ff. locat. l. si adest. §. si quis mulier..

Canonolog.

All contractes are bonae fidei, and what is a contract but stipulatio verborum? so that it is to be taken as the words doe sound, no violence being offered to apparant equitie. Pecki. ad reg. iur.

Anglonomoph.

In our law there is a case not much swaruing from this purpose, if we stand not too much vpon the common and verball way to go to the end of a question, I. B. did 3 The barri­ster putteth a case of carry­ing a horse safe and sound ouer Humber. declare by bill that A. at a certaine day and yeare vpon Humber did assume to carrie his horse being taken into his barge ouer the wa­ter of Humber sound and safe, and the said A. did surcharge his barge with other things, by which meane his horse perished in the water, and this was held a good cause of action 22. Assis. pl. 41.: but surely in this case without ferrying ouer the horse there was nothing due vnto the barge­man by reason of the couenant.

[Page]

Nomomath. Canonologus, you haue yet spo­ken nothing concerning the necessitie of mu­tuall consideration in bargaines, I pray you let vs heare the determination of your law here­upon, & then we will insist no more vpon this point of contractes.

Canonol.

Our law doth not refuse or abiudi­cate 4 The cannon law agreeth with the ciuill in cases of im­proper con­tracts. the kinds of improper contractes, as by the report of Anglonomoph. the common law doth, for if two should contend for an ecclesiasticall benefice, as namely for the aduowson of a par­sonage or prebend, and one of them agreeth with the other, that he shall haue one turne of presenting, and the other an other turne, and so successiuè per alternas vices, heere though there bee no consideration properly: yet in our lawe this is a good contract and a good consideration: but if one of them should haue giuen to the other twentie pounde to haue had the presentation wholy, & solely to him­self, 5 Diuision. this had bin void in law and symoniacall c. si quando cleric. de offi. de leg. &c. statui­mus de trāsac. nisi effet de preben..

Nomomath.

How doth your law Anglonom. punish defaultes for want of skill, as suppose that I do hire one for a certaine summe of mo­ney to make for mee a frame or fabricke of an house of good timber, well seasoned, and in a certain forme, and he maketh it of verie weake timber, ill seasoned, and very rudely in forme, whether in such a case will an action vpon the case lye against him or no.

Anglonomoph.

I doubt not but it will, for [Page 22] where a man vndertaketh to do a thing well & perfectly, and through ignorance and default of skill hee faileth, remedie is giuen by an acti­on vpon the case: for the case was 11. R. 2. that in an action vpon the case, the plaintif declared that at a certaine day and yeare in London there was a couenant made betwixt the plaintife & the defendant, that the defendant should cure the pr of a certaine maladie, & he tooke of him for it a certain summe of mony before hand, in 1 That by the common law want of skill is to be punished by an action vpon the case if there be an assumpsit ey­ther implica­tiue or ex­pressed. consideration whereof the said def. did vnder­take to cure the pr of his maladie, who mini­stred vnto him medicines contrary to his di­sease, whereby hee was empeired and became worse then he was before 11. R. 2. Act▪ sur le case 37.: so 19. H. 6. an actiō vpon the case was brought because the def. did assume to cure the plaintifes horse, and that he adeo negligenter, & improuidè imposuit medicinā, quòd equum &c. And it was there said by New­ton, that if I giue counsaile to a man to giue his horse certaine medicines, who doth it, & there­upon the horse dieth he shal not haue an actiō, vnlesse I had vndertaken to heale him, which must be trauersed: And Paston granted this, & said, that if I haue a disease in my hand, and a man applieth a medicin to my arme, by which negligence my hand is empeired, yet no action wil lie vnles he had vndertaken to cure it 19. H. 6. 49.; & as I take it, so is that case to be vnderstood which M. Fitzh. hath: if a smith doe hurte my horse with a naile, I may haue an action vpō the case [Page] though he did not warrant the well shooeing of him: but he saith not (though he did not as­sume) for in deed the shooing of him is an im­plicatiue assumpsit, & if there were no conside­ration, but the smith did it of meere good will, I do not thinke, that any action will lie Fitz. N. B. 94 D. 14. H. 6. 18. 46. E. 3. 19. 48. E. 3. 6. 21. H. 6. 55.: so that the action lyeth not meerely and directly for want of skill, but because the assumpsit was not accomplished for want of skill.

Codign.

But by our law the want of skill is a 2 That by the ciuill law want of skill onely is pu­nishable. sufficient ground of action: for if in the case proposed of the making a frame of a house, it be not done well and artificially, our law is that the artificer shall render damages in toto, but if some part be well done, and some ill, so that it is euident that if the workeman had vsed con­uenient diligence, all of it might haue beene well consummated, so that there is no default in skilfulnes but in carefulnes, then the worke­man shall not bee condemned in toto, but in tanto that is for so much, as is not well done Gazalup. in ver. ignorat..

Canonolog.

The rule of our law is, that crassa 3 By the can­non law Crassa & su­pina ignoran­tia non excu­sat. & supina ignorantia non excusat Ber. in c. regni. fiuit. de ordi ab epi. qui resig. epi..

Nomomath.

Let mee know this of you Co­dicgnost. when one man through fraud and de­ceit ouereacheth another, whether is this puni­shable in your law as a thing iniuriously done. 6. Diuision.

Codicgnost.

Yes if hee doe circumuent him 1 Circumuen­tion dolo malo punishable at the ciuill law. dolo malo.

[Page 23]

Nomomath. It must needes be so intended: for I am sure your Law reputeth no deceit to be good.

Codicgnost.

Yes, there is a distinction in our Law of Dolus bonus, and Dolus malus. Dolus 2. A difference at the ciuil law betwixt dolus malus▪ and do­lus bonus. bonus, is when a man doth machinate or deuise anie thing to entrap a thiefe, or a traytour ff. de leg. 2. lib. cum pater §. Titia., and such deceit may not properlie be tearmed fraude, but it may more fitlie be tearmed by the name of Solertia, or cunning. Such a kind of cunning is much vsed in war-fare, by which more victories are atchieued then by strength of hand. To which purpose I remember cer­taine verses of an vncertaine authour, that may well be accommodated to this purpose:

Nil refert Armis conting at palma dolóue,
Nam dolus, an virtus fuerit quis in hoste requiret.

But Dolus malus is a craft or subtill deuise vsed to the deceiuing of an other ff. de do. mal. l. 1. §. 1., or to frustrate the Law ff. de leg. l. contra legem.: As the Law prohibiteth a man to giue anie thing to his wife. And Titius giueth a horse to Sempronius, who giueth it to the wife of Titius by the secreat compact of her hus­band l. si sponsus in pr. ff. de do­na. inter virum et vxor., this is done in fraudem legis, because the purpose of the giuer at the first was to giue to his wife. But if there be a Statute, that euery one which guideth any wayne ouer such a bridge being fraught with carriage, shall paie iiij. d', and the partie causeth all the thinges in the wayne, when he commeth to the bridge, [Page] to be caried ouer the bridge on mens backes, here is no defraudation of the Law: But if he should giue iiij. pence for the cariage ouer the bridge, but not currant money, now the Law should be defrauded Io. in §. pe­nult. Insti. de [...]dop.. And when a man is pre­iudiced by the fraudulent dealing of an other man, he may by our Law haue an action a­gainst him, which is called actio doli, an action of Deceit.

Canonolog.

Indeede the difference of Dolus is vsed likewise in our Law. And we haue a rule of that which you haue tearmed dolum bo­num: 3. The same difference the common Law obserueth. Frangenti fidem, fides frangatur eidem 23. q. 1. noli existimare C. de pac. l. cum proponas in glo. Accur.. And likewise an example of it vsed in our law: namelie of Salomon, who did vse such cunning betwixt the two harlots, in searching out who was the true, and naturall mother of the child. But the deceit, which of you hath ben tearmed dolus malus, is in our Law nomen reatus, which it doth punish, as being done against the Law: for qui peccat, non peccat de legis authoritate 23. q. 4. qui peccat..

Anglonomoph.

That deceit which of ye both 4. Dolus malus punishable at the common Law by an ac­tion vpon the case, or a writ of Deceit. hath been tearmed dolus malus, doth not in our Law escape punishment: but for the more strong inhibiting and repressing of it, it doth afforde a double remedie against such as en­dammage others by deceit: namelie, either a writ of Deceit, or an Action vpon the case. For if a man plaie with an other at dice, and he hath false dice, with which he plaieth, and winneth [Page 24] the other mans money, he that loseth his mo­ney in such sort may haue an Action vpon the case for this deceit. And in other like cases an Action vpon the case, or a writ of Deceit will lie, at the pleasure, and election of the plaintife. And if I present one to a Church, whereof I am Patron, to the Ordinarie, and one T. distur­beth me: wherefore an other man purchaseth a Quare impedit in my name, retournable in the Common place (I not knowing thereof) a­gainst the said T. and after causeth the writ to be abated, or me to be nonsuit in the action, I may haue a writ of Deceit against him 5. 5. E. 3. Quare impe­dit 37. 20. H. 6. 20. Fitzh. nat. bro. 96. A.. And in euery case an action vpon the case is mainte­nable against him which sueth an originall in the name of the plaintife against his will 7. H. 6. 45.. So if a man forge a statute merchant in my name, & sue a Capias therupon, whereby I am arrested, and had in execution, I may haue a writ of De­ceit against him that forged it 19. H. 6. 44. 58. 34. H. 6. 19. Fitzh. Nat. be. 96. B.. So if the War­den of an Infant vouch one by couin, who is not sufficient, or pleadeth some bad plea, wher­as he might haue pleaded a better plea, the In­fant shall haue a writ of Deceit against him, and shall recouer the full value in dammages 9. E. 4. 34.. And 11. H. 6. a writ of Deceit was brought against an Attourney for acknowledging a satisfaction, whereas his master was not in truth satisfied 11. H. 6. 34.. And in a Praecipe quod red­dat, if the Shirife retorne the tenant of the land [Page] to be summoned, whereas in truth he was ne­uer summoned, whereupon the tenant loseth by default vpon the Graund cape retourned: Now the tenant may haue a writ of Deceit a­gainst him that recouered, and against the Shi­rife for his false retourne Fitzh. Nat. bre. 97. C.: But the writ of De­ceit in this case doth not determine the right of the land, but doth only defeat the iudgement 35. H. 6. 44. 18. E. 4. 11. 33. H. 6. 43. 41. E. 3. 2. 43. E. 3. 31. 50 E. 3. 18.. And 5. E. 4. is that no dammages in this case shall be recouered against the Shirife, but he shall be onelie fined 5. E. 4. 49.. And if a man recouer in a writ of Wast by default, whereas the defen­dant was neuer summoned, the defendant in this case may haue a writ of Deceit 20. E. 3. Dis­ceit 5. 29. E. 3. 54. 48. E. 3. 59. 19. E. 2. Disceit 56. 19. E. 3. Disceit 3.. And if a man bargaine with an other, and assume vpon consideration to enfeoffe him of certaine land, and he enfeoffeth an other: he to whom the assumpsit was made may haue a writ of Deceit 20. H. 6. 36. 16. E. 4. 9. Fitzh. Nat. br. 98. F., or an Action vpon the case at his pleasure 3. H. 7. 14. 2. H 7. 11.. And if one sell to an other a Horse which he know­eth to haue a secreat disease in his bodie: or sel­leth certaine quarters of Graine, which is full of grauell, a writ of Deceit lieth 20. H. 6. 36.. So 13. H. 4. a writ of Deceit was brought for selling a cer­taine quantitie of wooll, and warranting it to be 50. sackes, whereas it wanted of that mea­sure: the defendant pleaded in barre that it was weyed before the sale, and that the seruants of the plaintife being his factors did accepr it, and caried it beyond the sea, whereupon the plain­tife [Page 25] demurred 13. H. 4. 1.. And if a man lose his land by default in a Praecipe quod reddat, whereas he was neuer summoned, and die, his heire may haue an action of Deceit, and shall haue restitution of the land 8. H. 6. 5. per Rolfe. 15. E. 3. Dis­ceit 43. 18. R. 2. Dis­ceit 50. Fitzh. Nat. bre. 98. Q.. And 1. E. 3. in the booke of Assises it is said, that if a recouerie in such case be had against the father by default, whereas in truth the father was dead at the time of the recoue­rie, the heire may auoide this by writ of Dis­ceit, or Error 1. Ass. p. 16.. And whereas there be two te­nants for life, the remainder to the heires of one of them, and they both lose by default be­ing not summoned, and the tenant for life di­eth, the suruiuor shall haue a writ of Disceit for the whole: Otherwise it had been if the reco­uerie had been against the tenant for life onelie by default 8. E. 3. Dis­ceit 7..

Nomomath.

You haue sufficientlie discussed 7. Diuision. the point of deceit; Now I would craue your opinions of an other matter. Suppose that a man by slaunderous and opprobrious speeches is impeached, and his good name impaired, this being but a verball iniurie: whether doe your Lawes inflict punishment vpon such as offend by contumelious and reprochfull speeches or no? and what punishment doe they inflict?

Codicgn.

Such outragious speeches either pro­ceede 1. Contemp­tuous speeches are not punish­able by the Ci­uill Law. of pride, and tend to contempt, & against such the Law alloweth no remedie, because the partie himselfe may frustrate them by contēpt: [Page] Therefore the saying of the Rhodians in the se­nate did argue wisedom: Superbiam, verborum praesertim, iracundi oderunt, prudentis irrident: vti (que) si inferior is aduersus superiorem est, capitali paena nemo vnquam dignum iudicauit: etiam Deos aliqui verbis ferocioribus increpant, nec ob id quen­quam fulmine ictum audimus Liui. lib. 45.. The disgrace, espe­cially of wordes, irefull men reuenge with hatred, wisemen with laughter: yea though it happen that the iniurie be done by an inferior person to his supe­rior, and no man euer thought such iniury worthy of capitall punishment: euen the Goddes haue of some been reuiled by insolent tearmes, yet we do not heare that any man hath been striken with thunder bolt for that fault. But if the contumelie do rather flow 2. Oppropri­ous speeches which proceed of malice are punished. from malice then from pride, & tend rather to discredit then to contēpt, the case is altered, and then a capital punishment hath in ancient time been inflicted, if the fault were publike. For of the Romanes S. Augustine saith thus: Romani probris et iniurijs Poetarum subiectam vitam fa­mam (que) habere noluerunt, capite etiā puniri sancien­tes tale carmen condere si quis auderet D. Augusti. lib. 2. de ciuit. dei c. 12.: The Ro­manes would not haue their life & credit subiect to the reproches & iniuries of Poets, making it capital for any to deuise a slanderous libell. And he citeth the words of Scipio in another place: Nostrae duo­decim tabulae cum perpaucas res capite sanxissent, in his hanc quo (que) sanciendā patauerunt, si quis actita­uisset siue carmen condidisset, quod infamiam face­ret, flagitiumue alteri D. Augusti. lib. de ciuit. dei 2. c. 9. Cicer. lib. 4. de rep..

[Page 26]

Nomomath. Yet the Graecians did allow such 3. It is obie­cted that the Graecians did tollerate sar­casmicall spee­ches against wicked men. taunts and biting sarcasmicall speeches, as the same S. Augustine reporteth D. August. ibidem c. 9.. And Socrates did not take it grieuously to be noted of Comoedi­ans, for which he giueth this reason: Si merito reprehenderint, emendabimur: sin falso, tum illa nihil ad nos attinebunt. And it seemeth to keepe men in awe, and to restraine them from offen­ding, when as wicked men well deseruing infa­mie, are touched by such reprochful inuētions.

Codicgn.

Your three arguments against my as­sertion are but three words, Graecians, Socrates, Terror; to which by your permission I will par­ticularly aunswere. The Graecians did manie times sleep, when the Romanes did awake, & in matter of ambiguitie the Romanes were by ma­ny degrees more to be imitated then the Graeci­ans: Yet the Graecians did not alwaies suffer this licentious rage & inuectiue of Poets. For when Aristophanes in one of his comedies wold make known vnto the people the extorcious & tyran­nous spoiles of Cleon, a man of high estate Aristoph. in Equit., he was so inflamed with rancour against him, that whē he could hire none for mony to personate Cleon, he performed the part himself, & did with such indignity & disgraceful termes abuse Cleō, that Cleon pursuing the matter against him, he was fined 5. talents: and as himselfe confesseth, though he gained much by his acted Come­die, yet he lost fully as much by his fine: And as himselfe further confesseth (to expresse it in Latin) reuomuit quantum hauserat Aristoph. in Acharnens., being [Page] a tart-tounged detractor, whose workes are scarselie to be read, vnlesse a man would taste the gall of bitternes, much lesse to be imitated, and (as Viues censureth him well) multa per ebri­etatem conscripsit Ludouic. Vi. in comment. ad lib. 2. de ciu. de. c 9.. And whereas he was cor­rupted 4. Aristopha­nes is condem­ned for his bit­ter detractions. by money receiued of Anitus and Meli­tus, the enemies of Socrates, to scourge and lash Socrates in his comedie called Nebulae, (which the same Viues pretilie tearmeth fabulam nebulo­nicam) with contumelious speeches, Socrates in this should not haue been pacient, because it was crimen facto non leue, exemplo admodū graue: But Plato, who was more exercised then Socra­tes in matters of common weale, did banish out of his common weale such railing Poets Plat. lib. 2. de rep.. And wheras you think it conuenient to salt the cor­rupt maners of men by such piercing speeches, that they may feare to offend: the truth is, such salt is very vnsauorie, and such courses very cor­rupt: for if they be suffered to taunt Hyperbolus a lewd fellow, they wil not spare Pericles an ex­cellent man, (as Cicero well affirmeth in the per­son of Scipio Cicer. lib. 4. de rep.:) for he was likewise more then nipped of Aristophanes, and Eupolis. And S. Au­gustine reproueth such meanes of reprouing, saying grauely, wisely, and diuinely: Iudicijs ac Magistratuum disceptationibus legitimis pro­positam vitam, non poetarum ingenijs habere debemus D. August. d. li. 2. c. 9.: And disorderlie persons, as Cicero saith well, a censore melius est quàm a poeta notari: [Page 27] rather of a Censor which is Magister morum: then of a soure Satyrist or gibing comical-poet, which is Corruptor morum, & such faults are ra­ther to be rebuked of a preacher curing with his zeale, then scurrilously touched of a prater wounding with his stile: for such carpers ought to take religious heed least tincta Lycambeo san­guine 5 The deuisors and publishers of libels pu­nishable by the ciuill law. 6 The canon law is seuere a­gainst such. telagerant: But that I may shew what our lawes haue ratified touching this abuse: if any mā do deuise any slanderous libell against one, & it happeneth that another findeth it, and he doth not cancel it & teare it in peeces, but doth publish it to others, he is punished with capital punishment ff. de iniur [...]. lex torm. ent. §. si quis libe­rum., and so is the author likewise pu­nished Azo. in sum. C. de iniuri..

Canonol.

Wee account in our law such de­traction to be summam iniquitatem, & the cen­sure of our law is that omnis qui detrahit fratri suo homicida est c. 1. de ma­ledi. 6..

Anglonomoph.

Our law is too charitable dea­ling a mother, and therefore it alloweth the ad­ministration of goods circafuneralia, though it be done by a stranger, who hath no authoritie to intermeddle 21. H. 6. 28.: because it is a worke of cha­ritie 7 Reprooach­full speeches punishable at the common law by an ac­tion vpon the case. 21. E. 4. 5.: but slaunder and diffamation, which blemisheth the good name of others it dete­steth and vtterly disfauoureth, condemneth, & punisheth as a stepdame vnto rancor & violent speeches the abortiue children of malice. Wherefore an action vpon the case will lye at [Page] our law for calling the plaintife theefe 27. H. 8. 22.: and for calling the pr a false and periured man 28. H. 8. Br. Acti. sur le case. 3. 30. H. 8. Br. Acti. sur le case. 104.: so an action vpon the case lyeth for calling the pr false iustice of peace 4. E. 6. Br. Acti. sur le case. 112.. But to publish one for his villaine, who in truth is his villain is no slan­der nor actionable 2. E. 4. 5.: nor to publish one to be a bastard, who is in deed a bastard, if the defen­dant doe make title to the bastardes lande, and did therefore tearme him bastard that the mat­ter might bee produced into question and triall 25. Eliz. Ba­ [...]isters case..

Nomomath.

Enough of this, wee will passe now to other matters.

The third Dialogue.
Of Dettes.

NOmomath.

I pray you let me know 1 Diuision. Codicgnostes all the waies & meanes wherby one man may become in­debted to another, so that remedie may be had by processe of law for the debt.

Codign.

A dette may grow by writing or e­specialtie: 1 Dette may grow by wri­ting or especi­altie. as when the dettor confesseth him­selfe to bee obliged and bound to his creditor, and such bond or obligation may be by deede indented sub eadem forma verborum, & by mu­tuall deliuerie it becommeth the deed of them [Page 28] both l. seruū filij. § eum qui chi­rographum. ff. de leg. 1.. Such a kind of writing wee call instru­mentum 2 An obligati­on may be by deed indented at the ciuill law. priuatum, because it is done in the name and by the hand of a priuate man, not in the name of any king or prince: and this kind of instrument ought to haue the subscription of three witnesses C. de pro­ba. l.: but there is a priuate in­strument of more solemnity, which is called of 3 What instru­mentum garrā ­tigiae is at the ciuill law. vs instrumentum garrantigiae, an instrument of warrantie, vpon which a man shall haue pre­sent execution: as if it do specifie that one man is indebted to another, this being presently ex­hibited in place of iudgement, the iudge ought presently to awarde execution ff. de re iudi.: and such writings obligatorie if they haue any ra­zure in them in any materiall place are of no credit in law c. ex liter. in glo. 2. de fid. instrument.: and there bee in our law three sorts of bonds, Naturalis, Ciuilis, Praetoria. Na­turalis 4 Three sortes of bonds by the ciuill law. is, when as by mutuall contract one of the parties becommeth mutually bounde to the other. Ciuilis, is that which is made in forme of law, whereof we haue aboue spoken, wherein one of the parties confesseth and ac­knowledgeth himselfe to bee indebted to the other in a certaine summe of money, and bin­deth himselfe for the payment of the saide summe. Praetoria, which is deuised and concei­ued of the Pretor, and Iudge, in precise termes specifijng the debt Insti. de ob­li. in prin.. Likewise debt may accrue 5 Dette may grow by way of contract. vnto one by way of contract, which is nothing els but the cōsent of 2. persons for a thing to be [Page] done or giuen by the one to the other, and it is on both sides obligatorious de pac. l. 1. §. 1.: for if two doe consent in this true proposition: Titius est ho­mo, or in this false assertion, Titius est Asinus, yet this is no contract, because non vtrobique obligat Gazalup. verb. pactum.: for if the wordes or acte be obligato­rie, then the contract is obligatorie, as contrari­wise, if the words or acte tend to acquittance, then the contract is nothing els but an acquit­tall, as if the creditor doe redeliuer the writing obligatorie vnto his dettor, this is an acquit­tance in lawe: for otherwise the redeliuerie should worke nothing ff. de pac. l. labeo.: but if the creditor should redeliuer a pledge vnto the dettor, this will not amount to any acquitall or release of the dette, because the redeliuerie in that case may haue an other effect, namely the vse of the pledge for a certaine time l. sequent. ff. eo. ti.: And if the instru­ment or especialtie of the dette be come to the hands of the dettor, the law will intend prima facie that it was redeliuered by the cteditor in lieu of an acquittance l. si chiro­graph. ff. de pig.: but this must be limi­ted with this restreint, if the dettor be a meere stranger in facto vnto the creditor, but if he be his seruant or one of his familie, conuersing in house with him, then the intendment will bee otherwise: for then the law will presume that he might easily come by the bond without the priuitie of the creditor l. vnica. §. ille. C. de lati. li. tol..

Canonol.

I haue not at any time obserued a­ny [Page 29] thing in our lawe which maketh head a­gainst 6 The canon law agreeth with the ciuill in matters of bonds or dettes. these determinations of lawe by you mentioned.

Anglonomoph.

Our law with some of these assertions fully agreeth, and from some flatly disagreeth, as I meane to manifest by exami­ning 7 Dette may grow by con­tract by the common law. in order the particulars of Codicgnostes his speech. Dettes with vs may grow many waies, and euerie way an action of dette will lye: for it may grow by contract as Codicgnost. hath a­uowched. For if the husband sell trees grow­ing vpon the land of his wife, and the wife di­eth before they be cut downe, yet the husband may maintaine an action of dette: so it is of a vendition by the tenant in taile: so where a man hath a horse by wrong and selleth him to another for a certaine summe of money, and before the deliuerie of the horse, he dyeth, or the owner taketh him away, yet an action of dette lyeth vpon the vendition 18. E. 4. 6.. So if a man sell ten acres of land to another for ten pound, and after he will make no assurance of the land, yet he may maintain an action of dette for the money, and the other is put to his action vpon the case, but if it bee agreed, that the assurance shall be made before a certaine day, and the ten pound to be payed vpon the perfecting of the assurance, then the lawe is otherwise. For if hee make not the assurance before the day, but after hee shall not haue an action of dette [Page] for the ten pound 22. H. 6. 50. ꝑ Newt.. But if a tailor doe make a garment for mee, if we bee not agreed before what I shall pay for the making, hee can not haue an action of debt, otherwise it is for vic­tuailes and for wine 12. E. 4. 8.. Likewise an action of 8 An action of debt lyeth at the commō law for a loan of money. debt lyeth vpon a loane of money, made by the creditor to the debtor Fitzh. N. B. 119. G.: or it lyeth for a meere dutie, as when an Attourney bringeth 9 An action of debt lyeth at the commō law for a meer duety. an action of debt for money expended in the suite of his client Fitzh. N. B. 121. L. 10. H. 4. Dette 158. 3. E. 4. 29.: or vpon an obligation, as when the especialtie is Nouerint vniuersi me te­neri &c. And after the deed saith, ad fideliter computandum de proficuis, in this case the obligee may vse an action of debt, or an action of ac­compt at his pleasure 41. E. 3. 10. 42. E. 3. 9. 28. E. 3. 98.. Vpon which case Ba­ker 28. H. 8. in Cores case thus distinguisheth, that if the deliuerie of the money were to this intent, that an increase or profit might rise of it, and not that money might be repaied, there no action of debt will lie, but a writte of ac­compt onely 28. H. 8. 20. Dy. Cores. C.. And if a man do make a con­tracte to paye certaine money for a thing bought by him, if hee make an obligation 10 An obliga­tion made af­ter a contract dissolueth the contract by the common law. for the money, the contracte is discharged, and he shall not haue an action of dette vp­on the contracte 9. E. 4. 25. 28. H. 6. 4. 21. H. 7. 5. 1. H. 6. 8. per [...]ab. 20. H. 6. 23 35. E. 3. det. 83.. But if a man make a talie, and writeth wordes obligatorie vpon the ta­lie, and ensealeth it and deliuereth it as his deede, yet this shall not binde him, but hee may pleade nihil debet against it, or may wage [Page 30] his law, for an obligation ought to be writte in parchment or paper, and not vpon a peece of wood 25. E. 3. 40. 44. E. 3. 21. 2. R. 2. dett. 4. 12. H. 4. 13.. But the Queene may maintayne an action of dette against her Farmour vppon such a talie 5. E. 4. 10.. And a man shall not be fined for denying a talye ensealed 4. E. 2. en le title de fine.. And where­as you say that a man may bee bounde by deede indented, that is likewise so with vs: 11. A man may be bound by deed in­dented by the common law. For if one acknowledge himselfe by inden­ture to bee indetted to another man in an hundred pounde: for which hee deliuereth him certayne Veluet, that the other may sell it after the best manner that hee can, and to reteigne it for payment, and if any thing re­mayne of the dette, that hee will pay it, the other may sell the Veluet for twelue pence, and vse an action of dette for the remnant 18. E. 4. 5.. and 11. H. 6. an action of dette was brought for an hundred markes deuised by the last will and testament of A. being in the handes of the defendant, the def▪ by Indenture acknowled­ged that the said summe of mony remained in his hands, & the deuisee made his executors & died, & the abouesaid action of det was broght by the executors, & it was allowed: the law is likewise so of an accompt 11. H. 6. 46.. And if the words of an indenture be so: Ita conuentū est inter nos quòd A. soluat B. 20. li. ad festū Pasch. B. may haue an action of dett hereupon 30. H. 6. per Yeluert. Stath. tit. Couenant.. So when a man maketh such a bill, namely this bill witnesseth, [Page] that I A. haue borrowed so much money of C. without saying more, this shall charge the executor as well as an obligation, and the te­stator could not haue waged his law against this bill: for these words recepisse, or debere, or teneri ad soluendum 20. li. doe make a good ob­ligation and shall bind the executor: for euerie word which prooueth a man to bee dettor, or to haue a strangers mony in his hands, though it be by bill, yet it shall charge the executor 28. H. 8. 20. Cores c. per Fitzia. et Mountague.. As for your instrumentum garrantigiae, an instru­ment 12 A statute bond is resem­bled to an in­strument of warrantie at ciuill law. of warrantie as you haue tearmed it, it is fully and proportionably resembled by a re­cognisance vpon a statute merchant or staple: for thereupon the partie to whom the reconi­sance is made vpon the certifying of the same in Court shall haue present execution. For if a stranger to the reconisance of a statute come into the Chauncerie and shew the statute, and pray execution, he shall haue it: and if a statute marchant be acknowledged to two, & one of them commeth into the conrt with the statute he shal haue execution in both their names 11. E. 4. 9.: And 17. E. 3. two sued a Cerciorari of a statute merchant, and after the Cerciorari returned the parties came not, but others, as execu­tors profered themselues, and shewed forth the testament and praied execution, and had it 17. E. 3. 31.; But the opinion of Hill is to the contrary 18. E. 3. for a Ceciorari was sued vpon a statute [Page 31] merchant, and before execution the plaintife died: wherefore Greene praied execution for executors; But Hill said, that he should haue sued a Scire facias for the the executors, for it may be that the testator hath released: Where­fore you must sue a Scire facias out of the certi­ficat 18. E. 3. 10.. And vpon a statute staple the partie shall haue execution of the bodie, landes and goods by one writ: And vpon a statute merchant, first a Capias till a quarter of a yeare be past, and vp­on a retourne of Non est inuentus, the partie shall haue a writ to haue execution of his lands and goodes 15. H. 7. 14. Fitzh. Nat. bre. 131. D.. And a man may sue an action of Dette vpon a statute staple, vpon a statute merchant, and vpon any other recognisance Fitzh. Nat. bre. 122. D. et fol. 17.. And whereas you haue said, that a deede razed 13. A deede razed is not good at the cōmon Law. is not good in your Law, no more it is in ours, if it be razed or interlined, and in such case the obligour may conclude his plea, if he be im­pleaded in an action of Dette, with a Non est factum 1. H. 7. 14. Doues C. per Keble.. And whereas you haue affirmed that there be three sortes of bondes in your Law, Naturalis, Ciuilis, and Praetoria: For the first 14. The com­mon Law a­greeth in sub­stance with the Ciuill Law in the three sorts of bonds. two I haue shewed that our Law agreeth with yours: and as to the last it agreeth in the sub­stance of the thing, though not in the sound of the name: For an action of Dette may by our Law be brought vpon a recouerie or iudge­ment conteining the dette. For if a man reco­uer dammages in a writ of Wast, he may sue a [Page] writ of Dette vpon this recouerie, if he will Fitzh. Nat. be. 122. C. 20. H. 7. 3.. And so for dammages recouered in a Re­dissesin, a writ of Aiel, Cosinage, and a writ of Entre sur disseisin 43. E. 3. 2.. But in that you said that 15. The com­mon Law dis­senteth from the Ciuill, in not making the redeliuerie of, a bond an acquitance. the redeliuerie of a writing Obligatorie vnto the obligee is in steede of an acquitance, this is not so in our Law. For though it be notably well obiected by Fineux 1. H. 7. that there be as manie waies for him to whom a deede is made to dissolue the deede, as for him who maketh a deede, to make it a deede: as where as it is ensealed, he may break the seale: and whereas it is deliuered as the bond of the partie, he may redeliuer it in steede of an acquitance 1. H. 7. Dones C. per Fin.: Yet it is better aunswered by Mast. Keble, that a rede­liuerie may be either of a deede executorie, or a deede executed: The redeliuerie of a deede executorie hath some operation in Law ibi. per Keble., (as if a man deliuer a writing obligatorie as a scroule to I. S. to deliuer as his deede to I. N. vpon a certaine condition perfourmed: if I. S. deliuer the scroule back to the bailor, before the deli­uerie of it to I. N. and before the condition per­fourmed, the bailor shall not anie way be char­ged by vertue of this bond: But if it had been deliuered at the first as his deede to I. N. vpon a condition perfourmed Perkins tit. Faits.:) Now the redeli­uerie of it nequè ligat, nequè soluit, worketh no­thing: because a deede can haue but one deliue­rie, and if the first deliuerie be good, the second [Page 32] is voide, if the first be not good, the second may be good 1. H. 6. 4.. And so it is of a release execu­ted: for if a man be disseised, and after release to the disseisor, and after the disseisor redeliue­reth the deede of release to the disseisee, and saith that he will not haue aduantage of it, yet this is to no purpose: for by the release execu­ted no right may bee demaunded by him to whom the deede is redeliuered: but a right may be defended by him who is in possession, to whom the first deliuerie was 1. H. 7. Dones c. per Vauisor & Keble.. (But if the disseisee reenter vpon the disseisor, and the dis­seisor bringeth an Assise, and hath not the deed of release readie to intitle himselfe to the land, the other may still hold possession of the land: but then the redeliuerie of the deede of re­lease doth him no good directlie, but onelie per accidens, because the want of it doth hurt to the disseisor.)

Nomomath.

Now I pray you resolue vpon 2. Diuision. this, whether shall the Executor or Admini­strator be charged in all respects with the dettes and Legacies of the testator, or how farre forth they shall be charged: For I accompt a Lega­cie to be a kind of dette.

Codicgn.

The making of an Executor, which 1. By the Ciuil Law the Exe­cutor succee­deth in vni­uersum ius de­suncti. of vs is tearmed haeredis institutio, is to appoint one to be an vniuersall successor in the right of all his goodes after his death by his Testament or last will C. de haere. l. 1., which is not of force till the death [Page] of the testator, but vntill that time it is kept clausum & signatum, and as Isiodore saith, rather according to the truth of the thing, then accor­ding to the true deriuation of the word (as ma­nie times he doth) it is therefore called Testa­mentum, quia non valet nisi post testatoris monu­mentum, vntil the testator be laied in his graue Isiodor. li. 5.. And such Testaments must be insinuated to 2. Insinuation of a wil neces­sarie by the ci­uill Law. the Officiall or Commissarie of the Bishop of the Dioces within foure monethes after the death of the testator: which insinuation is ap­pointed by Law, Ad euitandum falsitatem, et sci­endum veritatem Testamenti L. iubemus. C. de test. l. si. C. de fidei­com.. But de iure Prae­torio though a Testament be not made, yet some person may be appointed by the Praetor to administer the goodes Iusti. de bo. poss. §. 1. et ff. eo. tit.. And as well the ad­ministrator, 3. By the Ci­uill Law the executour or administrator ought to make an Inuentorie of the goodes of the partie deceased. as the executor ought to make an Inuentorie or sufficient Catalogue of all the goodes of the partie in whose right they suc­ceede, which shall come to their handes. And it is a good and safe waie for them so to doe: for if they doe so they shall not be charged fur­ther with anie debtes then the goodes of the testator, or him that died intestate will extend. And such an Inuentorie by our Law cannot be disprooued, vnlesse the number of the wit­nesses that disprooue the Inuentorie be twice as manie in number as they which doe prooue it, which are commonly called Prizors cum Io. de si. instru.. And the Inuentorie ought to be begun by the Exe­cutor [Page 33] within 30. daies after the death of the testator, or at least within 30. daies after that he hath notice that he is made Executor: and it ought to be finished or consummated within thirtie daies after, or at least within a yeare af­ter, if the thinges be farre distant, and disper­sed in remote places, and then he shall be char­ged no further, then the goodes will stretch: otherwise he shall be charged in solidum for the whole dette Gazal. in verb. Inuen­tar..

Canonolog.

These thinges which you haue proposed are not reiected of vs, but are of vali­ditie in our Law.

Nomomath.

I pray you Anglonomoph. rip vp the particulars of Codicgnostes his late discourse as distinctlie as you can: for these things vtte­red by him are of great importance and vse at this day: wherefore I would haue you studi­ouslie and with care to discusse these things.

Anglonomoph.

In the substance of these mat­ters 4. The power of the Execu­tor dependeth wholie vpon the will of the Testator by the common Law. which he hath mencioned, I doe not see at the first glimse any discordance in our Law, but in the circumstance there will be some dis­sonancie, and variance. First to speake of the power of an Executor by our Law, it depen­deth wholie vpon the will and designement of the Testator: For if a man make three his exe­cutors, and all refuse the administration but one, yet the others shall be executors by vertue of the will, and may administer when they [Page] please, and an action ought to be brought in all their names, otherwise the writ shall abate. And if a man haue goodes in diuerse Prouin­ces, he may make his executors of his goodes in one of the prouinces, and die intestate as to the other goodes: And if the Ordinarie doe commit the administration of the goodes which are in the other prouince vnto him, now is he both executor and administrator 35. H. 6. 36.. And 4. H. 6. in an action of Dette brought by the Executors vpon an Obligation, the defen­dant demaunded oier of the Testament, and he had it, and the plaintife shewed forth a Te­stament nuncupatiue, being thus in effect: Memorandum quòd A. constituit B. et C. executo­res suos, and this was vnder the seale of the Or­dinarie: and the opinion of the Court was, that this was sufficient matter to maintaine the ac­tion 4. H. 6. 1: and if there be not speciall caution to the contrarie. By our Law likewise the execu­tor doth vniuersally succeede in the right of the goodes of the dead, and he may enter into the landes of the testator to take the goodes P. 9. H. 6. Stath. tit. Ex­ecut. ou Entr.. But if a man deuise goodes to one, and die, the deuisee cannot take the goodes without the deliuerie of the executor 37. H. 6. 30. 11. H. 4. Exe­cut. 58. per Thirn.. And the execu­tors do so fullie, and viuelie represent the per­son of their Testator, that if an action of Dette be brought against two executors, and the one of them pleadeth misnosmer, and the [Page 34] other pleadeth that he is administrator, and not executor: the opinion of the Court was that they should not haue both pleas, because they did represent their testator, who could haue but one onely plea 37. H. 6. 30. 7. H. 4. 13.. But it seemeth by the booke of 8. Ed. 4. that they shall haue seue­rall pleas, and the most peremptorie shall be tried 8. E. 4. 24. Execut. 31.. And an executor or administrator may haue a writ of Error vpon a iudgement giuen against their Testator concerning dette or dammages Fitzh. Nat. bre. 21. M.. And that a testament and a de­uise 5. According to the cōmon Law a Deuise is of no force vntil the death of the deuisor. are of no force till the death of the deui­sor, may appeare by diuers good authorities in our Law Littlet. lib. 2. c. 10 sect. 8. 27. Ass. pla. 60.. And whereas Codicgn. hath said, that by their Law there must be an insi­nuation of the will to the Bishops Officiall, 6. The com­mon Law a­greeth with the Ciuill in the insinuati­on of willes. doubtles it is so in our Law, for there must be such an insinuation and probate of the will, before the executors may bring anie action of Dette 7. H. 4. 18. 10. Eliz. Com. Brets c. et en Greyst. case.. And the Ordinarie may sequester the goodes of the dead, vntill the execu­tors haue prooued the Testament: And the Metropolitane may do the same, if the goodes be in diuerse dioceses 9. E. 4. 33.. But our Law diffe­reth from the Ciuill Law in this, that the administration of the goodes of him that dieth intestate is not committed by the Praetor, but by the Ordinarie: For if a man be indebted, and die intestate; or if the Executors of one that hath made a Will refuse to be executors, [Page] whereby the goodes do come to the handes of the Ordinarie, the creditors may haue a writ of Dette against the Ordinarie by the statute of Westminster 2. cap. 19 Fitzh. Nat. bre. 120. D.. and in this case he must be sued by the name of Ordinarie 9. E. 4. 34.. But after administration committed the Ordinarie shall not be sued 8. Elizab. 247. Dy.. And if Sede vacante, the Deane and Chapiter be gardian of the spiritualties, if a man doe then die intestate, and the Deane onelie administreth the goodes, it is sufficient for the Creditors to vse an action against the Deane onely: Otherwise it is if the Deane and Chapiter as Ordinarie should vse an action 17. E. 2. Br̄e 822.. And so if the Ordinarie make his executors and 7. That an ac­tion of Dette will lie against the Ordinarie. die, the Creditors may haue an action of Dette against the executors of the ordinary Fitzh. N. B. 120. D. Vieux Nat. br. 61.: though 11. E. 3. in the title of Executors be directly to the contrarie 11. E. 3. Exe­cutors 77. But a man shall not haue an action of Dette to charge the Ordinarie (as Ordina­rie) vnlesse he doe administer in his owne dio­ces 12. R. 2. Administr̄ 21.. But the Ordinarie can not haue an acti­on of Dette against such which were indebted to the partie intestate, because that action is gi­uen to the Administratour, and the Ordinarie may commit the administration of the goodes when it pleaseth him. But before the statute of king Edw. the 3. ann 31. ca. 11. the administrators could not haue an action of Dette: therefore it seemeth before that time the Ordinarie might haue vsed an action of dette, otherwise remedie [Page 35] should haue failed Fitzh. N. B. ibid.. but the Ordinarie may & might at all times haue had an action of tres­passe for the goods of the dead taken out of his owne possession 18. H. 6. 23. 7. H. 4. 18. 11. H. 7. 12.: but not for goods taken out of the possession of the partie intestate 17. E. 2. Briefe 822.. But if the Ordinarie without formall letters of admi­nistration granted, do giue one licence and au­thoritie to sell the goods of the partie deceased intestate quae peritura essent, and he doeth it ac­cordingly, he which doth so administer shalbe punished as an executor of his owne wrong 9. Elizab. 256. Dy.. neyther can hee commit administration by word of mouth, otherwise it is if it bee entred into his register though letters of administra­tion bee not formally drawne 21. H. 6. 23.. And it may come in issue whether he that granteth admi­nistration were Ordinarie in the place where the administration was committed, as if the village doe extende into two dioceses 35. H. 6. 46.. And it may come in issue whether administration were committed by the Ordinarie. And whereas Codicgnost. hath also affirmed, that if the executor or administrator doe make an In­uentorie, 8 The Canon law agreeth with the ciuill in administring the goods cō ­prised in the Inuentorie ac­cording to the testament. and dispose the goods comprised in the same according to the testament of the par­tie and appointment of lawe they shall not bee further charged, our lawe in this consorteth with the ciuill law: for it is a good plea for the executor to say that hee had fully administred before he had notice of the writte of the plain­tife 7. H. 4. [...]0. Plowd. com. 277.: [Page] for though hee doe pay debtes vpon contractes, the writte depending against him vppon a bonde, whereas hee had no notice of the suite, he shall not bee in such case char­ged 2. H. 4. 21.. And 3. H. 6. in an action of debt vp­on an obligation of twentie pound brought against executors, they pleaded riens enter maines, that they had nothing in their hands, and it was founde by verdict that they had tenne pound in their handes: wherefore the plaintife had iudgement to recouer so much as was found of the goods of the deade, and the dammages of the goodes of the execu­tors for their false plea 3. H. 6. 4.. But in Dauises Case in the Commentaries it was otherwise ruled that nothing should bee put in execution vp­on such a plea but onely the goodes of the dead Dauis. C. com. 440.. But in a Fieri facias vpon a recouerie against executors the Sheriffe returned a de­uastauerunt, wherefore the Court did graunt a writte to haue execution of the goods of the dead, and if there were no such goods, then of the goods of the executors 11. H. 4. 70.. And 4. E. 3. in an action of dette brought against the executors, it was found that they had fully ad­ministred, and the opinion was, that the Iurors should set downe in certaine how much they had administred, because they shall not bee charged but onely according to that which is found by inquest 40. E. 3. Statha. tit. ex­ecutors.. But it was said 34. H. 6. [Page 36] that when the executors doe plead (fully ad­ministred, but onely for so much) & their plea is found, the plaintife shall haue iudgement to recouer all his dette, but he shall not haue exe­cution but onely of the goods in their hands 34. H. 6. stath. tit. Execut.. But it is good to bee considered what may properly bee saide assets in the handes of the 9 What may properly be said to be as­sets in the hands of the executors. executors: if the executors doe merchaun­dize with the goodes of the testator, the in­creasall of them shall bee assets in their hands, and shall charge them, and they cannot plead that they haue fully administred when they haue such assets 11. H. 6. 35. per Bal.. And if executors doe sell the goodes of the testator, and doe buy them againe, they remayne in their handes as as­sets, because they were the same goods which were the testators 18. H. 6. 4.. (But then it seemeth that the money which they had for the sale of the goodes was wasted by them, and not conuerted to the vse of the testator: for other­wise there is no reason, but that they should haue a propertie in them to their owne vse) for if the executors pay the debtes of the te­stator of their owne goodes, they may retaine the goodes of the testator to the value in their handes, to their owne vse 6. H. 8. 2. Dy.. But it was held by M. Fitzherbert 27. H. 6. that where a man is indebted 40. pound to one, and 30. li. to ano­ther, & dieth; and hath but 40. li. and his execu­tors or administrators agree with the creditor [Page] of 40. li. for 10. li. and haue an acquittance of the 40. li. yet the thirtie pounds which remai­neth in their hands shall bee assets 27. H. 8. 6. per Fitzh.. And so a gage being ransomed shall bee assets in their handes, but according to M. Frowikes opini­on it shall not bee assets if it were ransomed with their owne money 20. H. 7. 2.: But as M. Brooke noteth wel abridging the case abouesaid of 20. H. 7. the money which commeth in lieu of a pledge, being gaged to their testator shall bee assets in their handes. So it hath beene adiud­ged, that if a man make a feoffement vpon con­dition that the feoffee shall sell the lande, and distribute the money to the vse of the te­stator, whereupon he selleth the land, and the feoffor maketh him his executor, the money taken for the land sold shall be adiudged assets in his hands 2. H. 4. 21. Executors. 51. 3. H. 6. 3.. So if the executors pleade (fully administred) and it is found for them, and after certaine goodes of the testator come to their handes, wherefore he which brought the first action of dette bringeth the same against them againe, this action is well maintenable 7. E. 4. 8. per Littlet. & Danby..

Nomomath.

You haue satisfied mee for this point Anglonomoph. Now I pray you Codicg­nost. strayne your endeuour a little to resolue me vpon point of execution to be sued vpon these dettes. I haue reade that in ancient time it was a law amongst the Romans, that if a man greatly indebted were not able to discharge [Page 37] the dette, his bodie was mangled and cut in 1 The rigo­rous law of the Romanes in their execu­tion for dette. peeces, and the greatest portion of it giuen to his greatest creditor, a lesser to him to whom he did owe lesse, and so pro rata Paul. Ma­nut. lib. de le­gi. Roma.: which lawe beside the monstrousnesse of it in such a com­mon weale was verie inhumane: for the credi­tors might, if they would in their furie, by this law cast the members and partes of the bodies of their debtors to dogges, and other brutish beastes, so that that the Romanes had not so much care of their Senators, gentlemen and ci­tizens, as the friendes of Diogenes had of him. For when the Cynicke laye vpon his death­bed, his friends which were then about him, asked him in curteous manner, where he wold be buried, he thinking perhaps that a man was nothing but a mind, answeared them that he would bee buried in the dunghill, and they re­plyed that that would be verie inconuenient: for the dogges would then rake him vp and deuoure him: Then (said he) lay some staues by mee to beate away the dogges; but they told him that hee could haue no sence in his bodie after his death: then (quoth he) what neede I feare the dogges. This was but the glaunce of Diogenes, who made more ac­compt of his scoffe then his state. But others more ciuill doe thinke it a great losse, shame, and indignitie that a mans bodie should not [Page] be buried, wherefore Lucan sharpely inueyeth 2 The execu­tion of the Romanes greatly to bee reproued, be­cause it did depriue men of buriall. against Caesar: Tu, cui dant paenas inhumato fu­nere gentes Luca. lib. 7.: And it is the iudgement of all antiquitie that without verie heynous fault the partes of a mans bodie should not bee debar­red from sepulture. Romulus though hee had caused to be slaine his brother Rhemus, and af­ter his death did continue his fury as his speech importeth: Sicque meos muros transeat hostis ait. Yet he gaue him sepulture, and atten­ded vpon the hearse himselfe: for as the Poet saith Oui. Fasto. 4:

Dat tamen exequias, neciam suspendere fletum
Sustinet, & pietas dissimulata patet:
Osculaque applicuit posito supremaferetro,
Atque ait: inuito frater adempte vale.

And therefore the Ambassador of Darius doth exceedingly praise the great curtesie of Alex­ander mourning for the death, and hauing spe­ciall regard of the sumptuous sepulture of the wife of Darius his professed enemie: Vultum tuum video qualis Darij fuit cum dimitteremur ab eo, & ille tamen vxorem, tu hostem luges. Iam in acie stares, nisi cura tesepulturae eius moraretur Curti. li. 4.. And Salomon saith diuinely: If a man begette an hundred children, and liue many yeares, and the daies of his yeares bee multiplyed, and his soule bee [Page 38] not satisfied with good thinges, and hee bee not bu­ried, I say that an vntimely fruite is better then hee Ecclesiast. c. 6. v. 3.. Then surely (that I may recourse vnto that from which I digressed) for the Romans to adde shame to affliction, and when the hard debtor is not able to maintaine himselfe with meate and apparell in any reasonable sort, after straite imprisonment and extreame want, to cutte his bodie in peeces, and to distribute it in recompence of of vile money, is a thing ve­rie immane, and in my opinion greatly ob­scuring the bright and glorious dignitie of the auncient Romane common weale. Misera­ble doubtlesse is the state of them which haue nothing but domi inopiam, foris aes alienum, ma­lam rem, spem multo asperiorem, & nihil reliquum praeter miseram animam Salusti. in Catilin.. The Lord in his yeare of Iubilie signifieth his pittie towarde decayed persons. Septimo anno facies remissi­onem, quae hoc ordine celebrabitur. Cui debetur aliquid, ab amico vel proximo, ac fratre suo repe­tere non poterit, quòd annus remissionis est domi­ni Deuteron. c. 15.. And to preuent the cautelous sophi­strie of miserable worldlings hee giueth this caueat. Caue ne forte subrepat tibi impia cogita­tio, & dicas in corde tuo: appropinquat septimus annus remissionis, & auertas oculos tuos a pau­pere fratre tuo nolens ei quod postulat mutuum co­modare, ne clamet contra te ad dominum &c. Augustus Caesar that wise Emperour was [Page] of so mercifull disposition that for establish­ment of peace and concord amongst the Ro­manes, he relieued the common stocke, which was greatly impaired by ciuill warres with his owne priuate wealth, and them that were in­debted to the common treasurie, the billes of debt being burnt with his owne hands hee did free from the daunger of the roll Dio. Nicae. in vit. August. Carol. Sigo. in fi. lib. fast. & triumph. Roma.. Mercy doubtlesse, and pittie is to be extended to such as haue nothing to help themselues withall, & therefore doe not pay debts, because they can not: Non manca est voluntas, sed potestas mutila. To such I say mercy ought to bee exhibited. The richest man in the world, bee he neuer so good, is a greater debtor to God, then any man is to him: yet God doth forgiue, and will not man forgiue? Quis persequeretur canem mortu­um. What horsleach would sucke for bloud out of a bloudlesse member? Bitter was that saying of tyranicall Tyberius to one that reque­sted death, rather then long imprisonment: Nō ­dum tecum redij in gratiam? Blessed are the merci­full for they shall obtein mercie Mat. 5. v. 7.. I speake not this as if fauour should bee shewed to couetous churles, which had rather lose their bowels thē their bagges, and deuise fraudulent shifts and knottie conueiances to bereaue & defraud the creditor of his due debt: and whereas they may make payment in ten dayes, doe deferre it ten yeares. It were a blessed thing, if the bodies of [Page 39] such miserable Midasses might be changed to gold, whilest they were in prison (so their soules might be saued) that by such meanes at the least their creditors might be satisfied. But let euery Creditor vse conscionable discretion, and distinguish betwixt them and these that be otherwise minded.

‘Diuexet coruos, parcat censura columbis.’

Let them vse mercie to such as be humbly min­ded, and anguished in hart, because they are not able to discharge their debtes: Let them remember that charitie seeketh not her owne: that she freeth the bondman: cheareth the weake: fatneth the poore: doth good against euill. Some think it great charitie to spare a mans goodes, when he hath but a little left, and to imprison his person: if that be charitie.

O mites Diomedis equi: Busiridis arae
Clementes tu Cinna pius: tu Spartace lenis
Claudi. lib. 1. in Ruffi.
.

Let the Creditor think that he may fall into the same calamitie and extremitie himselfe which the dettor suffereth: And (that I may vse the wordes of the noble-witted Curtius,) Suam quis (que) fortunam in consilio habeat, cum de aliena deliberat. The Troians were once a flo­rishing people: Ferus omnia Iupiter Argos trans­tulit Virg. in Aenei.: Troy a goodlie Citie: Iam seges est, vbi Troia fuit Ouid. in epistol.. Hecuba in her youth a gallant Prin­cesse, in her age a captiue, deploring her estate with Me videat et te Troia Senec▪ in Troia.. And Seneca the [Page] artificer of sorrow saith well:

Quem dies videt veniens superbum
Hunc dies vidit fugiens iacentem.

Most diuine is the saying of that deepe diuine: I haue seene seruants on horses, and Princes walk­ing as seruants on the ground Ecclesiast. c. 10. vers. 7..

Codicgn.

You haue insisted a long time vp­on 3. That the rigorous Law of execution for bette was afterward a­brogated by the Romanes. a Law antiquated, and made a large com­ment vpon a supposed text: for the Law, which ministreth occasion of your copious discourse, though it were allowed and vsed by the Ro­manes for the terrifying of vnconscionable men, which made no scruple to ouerwhelme themselues with dette, and neuer to discharge it, or compound for it, or to shew any thank­fulnes for it: yet when the horror of the pu­nishment seemed grieuous and too shamefull vnto them, that Law for the bitternes of it was out of their authentike diskalendred: and ma­nie yeares are past sithence it was repealed and abrogated Hotom. lib. illustr. quaest.. But now according to our Law 4. By the Ci­uill Law exe­cution for deuelieth vpon the goodes of the partie, & how far forth the word (goodes) extendeth. execution lieth vpon the goodes of the partie which we tearme bona: but the signification thereof extendeth further then the name of goodes at the common Law: for it signifieth res nostras quae sunt in dominio nostro, vel quasi: and it signifieth aswell inheritance as goodes.

Canonolog.

In this we dissent not from you.

Nomomath.

Let me know Anglonomoph. what maner of execution ye vse for dette at the com­mon [Page 40] Law.

Anglonomoph.

The execution is foure-fold, 5. A fourefold execution for dette by the common Law. either of goodes onely by Fieri facias, or of the moitie of landes by Elegit: or vpon all the landes by an Extendi facias, vpon the reconu­sance of a statute, or of the bodie by Capias ad satisfaciendum: euery of which by your paci­ence I will explane by cases and examples, or by shewing their originall. A Fieri facias is­sued out of the Eschequer for the king against 6. The execu­tion of goodes by Fieri facias is opened. a Parson for money due to the king out of an Abbey, to which the Church of the Parson was charged in xx. markes, and for two markes behind a Fieri facias issued to the Shirife in these wordes: Fieri fac. de bonis et catallis spiri­tualibus, et temporalibus prouenientibus de Recto­ria de R. and the Shirife by his bailie tooke two bookes in the Church, and sold them for the kings dette 8. H. 5. 4.. And wheras A. did recouer dam­mages in a speciall assise before speciall Iustices, and brought an action of Dette for the dam­mages: it was resolued that the defendant was dettor of recorde, and therefore ought to be discharged by matter of recorde, and for that cause the Fieri facias is: ita quod habeas dena­rios hic, to the intent that the payment of the money to the plaintife may be of recorde, and the defendant discharged by recorde 11. H. 4. 58.. Execution by Elegit is warranted by the Sta­tute of Westminster 2. cap. 18. which saith: [Page] Si quis recuperet debitum aut damna, sit in electi­one querentis, an habere velit Fieri facias de terris & catallis (it should seeme to be meant de bonis & catallis) vel quòd Vicecomes liberet, (it see­meth to be better, et quòd Vicecomes liberet ei omnia catalla debitoris, exceptis bobus et affris ca­rucae suae & medietatem, it seemeth more agree­able to the purpose, vel medietatem terrae suae, quousquè debitum fuerit leuatum per rationabile pretium et extentam.) The execution vpon 8. Execution vpon statute merchant is opened. Statute merchant may appeare by this case. A man had execution out of statute merchant, and the Shirife returned an Extent of the lands of the reconusor in this maner, sciz. that he had sent to the baylie of the fraunchise &c. who had retourne of writs to extende the landes, which were within the fraunchise, and so he did, and that which was within the bayliwicke of the Shirife namelie in guildable, himselfe caused to be extended by parcels, and at the end he put the summe of the value, and after the summe he put the charges, as rents, and other charges which were due out of the said landes, and amongest other charges he retour­ned that the land was charged to the reconusee with xx. li. yearely for euer: And the Iustices cast all the charges of the landes, and the value, and they did perceiue that the charges passed the value by xl. s'. and after it was shewed that the Shirife had sent to an other Baylife of an [Page 41] other fraunchise in which the partie had lands, and of these landes he made the third extent, so that by that extent the value passed the charges by tenne shillinges, wherefore execution was awarded 29. E. 3. 1.. And 9. E. 3. one sued a writ to take the bodie of him, who had made a statute mer­chant to him, and the Shirife retourned that he was dead, wherefore he praied a writ to the Shirife to deliuer vnto him all the lands which he had the day of the reconusance, or at any time after, and he had it 9. E. 3. 24.. Execution by Ca­pias 8. Execution by Capias ad satisfaciendum is shewed. and imprisonment is after this manner. Dammages were recouered against I. in a writ of Trespas in the kinges bench, in the time of king Henry the fourth, and after in the time of king Henry the fifth he was condemned in Lon­don at the suit of an other, and put in New­gate, and he at whose suit he was condemned in the kings bench had a Capias ad satisfacien­dum to the Shirifes of L. which did send the bodie, and did certifie that he was condem­ned at manie mens suites in London, and now he that sued the Capias came into the Court and did acknowledge agreement to be made, and the defendant was readie to make a fine to the king, and praied to be deliuered: But be­cause he was condemned in the time of an other king, and the Iustices which be now haue not knowledge of the persons, which were parties to the pleas in the time of an [Page] other king as the Law doth intende, and like­wise, because if he be acquited heere, he must be sent backe into London, because hee is condemned there: and thirdlie, because by couin betwixt him which acknowledgeth a­greement, and the defendant, he may defraud him at whose suit he is condemned of his ex­ecution: for if he be deliuered, the other is without remedie, therefore a Scire facias was awarded 8. H. 5. 7.. The like Law is in an execution vpon an Action of Dette, and in an acquitall, the fine to the king being excepted.

Nomomath.

Well, I will trouble you no further about questions of Dette. Now let vs passe according to the platforme of the conference to examine doubtes touching Ac­comptes.

The fourth Dialogue.
Of Accomptes.

NOmomath.

Suppose Codicgnostes 1. Diuision. that I deliuer vnto you my horse or hauke, to sell him for fyue poundes, and to deliuer me ei­ther the fiue poundes, or rede­liuer [Page 42] the thing againe: Shall you not be ac­comptable to me in this regarde?

Codicgn.

Yes truelie, and that by an ac­tion 1. In what case a man is accomptable at the Giuill Law per acti­onem aestimato­riam. which we call Actionem aestimatoriam, because it is conceyued vppon the speciall and prescript wordes of the valuation of the thing ff. de aesti­ma. ac in ru­bro. et l. 1. et Insti. de actio. §. actionum..

Anglonomoph.

So by our Law we haue a 2. The diffe­rence of a spe­ciall bailie, and generall bailie at the common Law. speciall bailie, and a generall bailie: A speci­all bailie is he which is bailie after a speciall maner, and to a speciall purpose. For if a man deliuer an Obligation to an other to receiue so much money as he can get of that which is contained in the bond, if he receiue no mo­ney vpon the bond, a writ of Accompt lyeth not, but a writ of Detinue for the bond: (But it seemeth that if hee receiue a lesse summe, then a writ of Accompt will lie:) But if he receiue the verie summe conteined in the bond, then a writ of Accompt will lie against him, as receiuor of his money. But if his bai­lie be also bailie of his mannour, and this Ob­ligation be deliuered vnto him as bailie of the mannour, then an Accompt will lie against him as bailie of the mannour habentem curam of this Obligation 2. R. 2. Ac­compt 46.: for a bailie of a man­nour may well be tearmed a generall bailie. And Brian 2: R. 3. putteth an expresse difference betwixt a generall, and a speciall bailie: A man saith he may be bailie of a mannour, or of an [Page] house, if he be bailie of a manour, he hath 3. What things belong to the charge of the bailie of a ma­nour. charge of all the oxen, horses, ploughes, be­longing to the manour, and of all the profites arising, and growing out of the manour, and he shall be accomptable for them. But if he be bailie of an house he shall not be accompta­ble, but onelie for the house 2. R. 3. 14. per Br.. But this is the difference betwixt a bailie, and a receiuor, ac­cording to the bringing of a writ of Accompt. A writ of Accompt will not lie against one as bailie for a certaine and a peculier thing: But whereas A. giueth twentie pound to B. to mer­chandize for him, and to his vse, for the pro­fite hereof, because it is a thing vncertaine, a writ of Accompt will lie, to the ende that by the writ of accompt the incertaintie may be brought to certaintie 9. H. 5. 3. per Hyl.. But in your case pro­posed, the bailie is to bee intended a speciall bailie. But this generall and currant rule we haue touching all bailies, as well generall, as speciall: If the bailie be preiudiciall to his his master, he is to make recompence to his master: As if my bailie sell a quarter of corne 4. That by the common Law if the baile be preiudiciall to his Master, he is to make re­compence. for fortie pence, whereas he might haue sold it for vj. s'. viij. pence, he must aunsweare for this 6. R. 2. Ac­compt 47. per Belkn.. So if he buy thinges for xx. pound, which are not worth x. li. he shall not be al­lowed this vpon his accompt, though he did as much as he could according to his know­ledge 41. E. 3. 3. per Finch.. But if a baylie doe a thing which [Page 43] toucheth his bayliwicke, and which duetie bindeth him to doe, as if hee pay rentes or other dueties which are due of the man­nour, he shall be satisfied for this: otherwise it is if hee doe any thing which toucheth not his bailiwike, for then hee ought to haue speciall warrantie 42. E. 3. 6. per Belkn..

Canonol.

Our law dissenteth not from these assertions.

Nomomath.

Suppose I giue money to Titius 2 Diuision. to buy for mee and to my vse the land of Sem­pronius lying in dale, whether is Titius accomp­table to me for this.

Codicgnost.

There is no question but he is ff. acti. man­dat. direct. l. si vero. §. fi.. but if your selfe or some other to your vse doe 1 By the ciuill law the bailie is discharged if the maister intermeddle. buy the lande of Sempronius, now is Titius dis­charged vnlesse he more expediently, and with lesse cost might haue bought it of Sempro­nius ff. eod. tit. l. si procurator. §. mandat. act..

Anglonomoph.

This is not repugnant to our law: and in all cases a writte of accompt lyeth where a man is put in trust to procure the pro­fite 2 That by the common law as wel as by the ciuill hee that is put in speciall trust to puocure the profit of an o­ther is ac­comptable. of another, and is not his apprentice: for if the king graunt to a village certaine tolle of things which shall bee fold in the same village, and the townesmen of the village make collec­tors to receiue the toll: if afterward the collec­tors will not make accompt hereof, they may haue a cōmission out of the Chauncerie to en­quire who hath receyued this tolle or money, [Page] and to heare their accomptes and to determine the matter Fitzher. N. B. 119. f. 114. c.. And 8. E. 4. it was said by Nedham, that the Churchwardens of a certaine parish might haue a writte of accompt against their predecessors, but the parishioners could not 8. E. 4. 6. per Nedh.: And so the master of an hospitall may haue a writte of accompt against him that was recey­uor or bailie in the time of his predecessor Fitz. N. B. 117. F.. And 30. E. 3. a writ of accompt was made by a master of an hospitall against one, as the bailie of his Church, and this forme of writ was al­lowed, and the action was brought by him as parson, he being not named parson in the writ, and yet the writte was allowed because hee de­manded nothing which might continue to the Church for euer, as he must do in a Iuris vtrū 30. E▪ 3. 1. 13. H. 4. Accompt. 124. 29. E. 3. 60.. And 4. E. 3. a writ of accompt was brought for a receit of certain money in the time of his pre­decessor 4. E. 3. Ac­compt. 97.: and 34. E. 3. in a writ of accompt a­gainst one as the bailie of his woode, the pr de­clared, how the def. was the bailie of his wood to cut it, and to sell it; and the declaration was allowed without saying that hee did any way administer: for this must come in by way of answere, and so the writte may bee against the bailie of a mannor habentē administrationem bo­norum: & Moubrays opinion was that the bailie of a wood ought to make account for the fruits of the trees, herons and hawkes 34. E. 3. Ac­compt. 131.. But a writ of account cannot be brought against one as his [Page 44] bailie, vnlesse he be the bailie of his house, land or mannor 9. E. 3. Ac­compt. 95.. And if one ought to be bailie by reason of his tenure though he do not occupie the office, yet he shall be charged in a writt of accompt 18. H. 8. 2.. And if a receiuor or bailie do make a deputie, yet the writ of account ought to be brought against the bailie himselfe, or against the receiuor himself, & not against their depu­ties: for the deputies resceiue the money, and administer the goods to the vse of the master Fitzh. N. B. 119. B.. but a writte of accompt will lie for the receiuor against his deputie, as for the vicount against his deputie 11. R. 2. Ac­compt. 48.. And a man may haue a writte of accompt against a woman as receptrix denario­rum 8. E. 2. brief. 847. Fitzh. N. B. 118. D.. And 4. E. 4. there is an excellent diffe­rence taken where a woman is bailie or recei­uor to a man, and after she taketh a husband, a writ of account lyeth against them both (as e­conuerso it lyeth for thē both 28. H. 6. 7.:) de tempore quo &c. dum ipsa solafuit: but whereas a man & a woman be receiuors, & they after entermarie: in the writ they shalbe both named receptores 4. E. 4. 26. 19 H. 6. 5.: but a writ of account wil not lie against an in­fant as bailie or receiuor to any man, because the law will not intend that any man will put confidence or trust in him who wanteth dis­cretion, & experience. 17. E. 2. Ac­compt. 121. 16. E. 3. Accompt. 57. 27. E. 3. 77. 19. H. 6. 5.

Canonol.

There is nothing in our law which oppugneth any thing that you haue said.

Nomomath.

If the master of the baylie hap­pen [Page] to die, whether may his executors charge 3. Diuision. the bailie with an accompt.

Codicgnost.

By our law they may ff. acti. man­dat direc. l. si vero §. f. 1.

Anglonomoph.

That likewise is warranted by 1 Accompt ought to be made to exe­cutors by the ciuill law. our law: for if any haue cause to haue an acti­of accompt against his bailie or receiuor, if he dye, his executors may haue this action, yet the common law at the first was otherwise 7. E. 3. 62. But now it is altered by the statute of Westminst. 2. c. 23. and agreeth fully with your law in this: For 38. E. 3. one was bailie of a woode to two ioyntenants & a writ of accompt was maintai­ned by the executors of him that suruiued 38. E. 3. 8.: to which accordeth 19. E. 3. and that the heire shall not haue a writte of accompt against him 2 The same is warranted by the common law. that was receiuor to his father 19. E. 3. Accompt. 56.: And 3. Eliz. the administrator brought a writ of accompt 3. Elizab. 202. Dy.. 3 That a writt of accompt by the common law will not lie against ex­ecutors vnlesse it be in some speciall cases. But a writte of accompt will not lie against the executors or administrators of a bailie or recei­uor for the receit and occupation of their testa­tor Fitzh. N. B. 117. C.: vnlesse it be in the kings case Littlet. tit. socage.. But if the executors doe once enter into an accompt, a writte of accompt will lie against them in the case of a common person 12. E. 4. 10.. Or if the bailie or receiuor bee found to bee in arrerrages of ac­compt, and die, an action of debt lyeth against his executors vpon an insimul computauerunt 2. H. 4. 13.. And it appeareth by that booke that in the writ he must be named executor: and a bailie may haue a writ of debt against the executors of his [Page 45] master for a surplusage of accompt 13. H. 6. ex­ecutor. 21..

Canonol.

This I can not withstand by any rea­son in our law.

Nomomath.

I pray you let me know the force 4 Diuision. and substance of the authoritie which the ma­ster may giue to the bailie.

Codicgnost.

It is no more but when a man 1 What au­thoritie may be assigned to a bailife by the ciuill law. may do a thing by himselfe, hee committeth it to another to be done of him Gaxalu. verb. mandat.. And hee that doeth execute the authoritie ought not to ex­ceed the limits of his authoritie Iusti. man­da. §. si is qui.. But this dif­ference 2 The diffe­rence of an authoritie a charge, and command by the ciuil law. we put betwixt an authoritie, a com­mand, and a charge: The commaund is deter­mined by the death of him that commandeth, the authoritie is not, neither is the charge, as by this verse though somewhat obscure is not ob­scurely signified In his de verbo sig..

Praeceptum non praecipitat mors praecipientis:
Mandatum mandatore cadente cadit.
Canonol.

But some hold opinion, that all these 3 The canon law is against the difference, so likewise is the common law. three: authoritie, command, & charge doe ex­pire by the death of him that commaundeth, chargeth, or giueth authoritie Ioan. 14. q. 1 quod praecipit..

Anglonomoph.

In deed that is more agreable to our lawe especially in this matter of bailie­ship, as may appeare by diuerse authorities in our law 2. Eliz. 177. Dy. 5. Eliz. 219 Dy. 2 E. 4. 4. 10. Eliz. 270. Dy..

Nomomath.

I pray you let me know the dif­ference [...]. Diuision. betwixt a bailie, a solicitor, an atturney, and deputie, that I may haue more distinct [Page] knowledge of that which I endeuour to know.

Codicgnost.

A bailie is he to whom a speciall charge of procuring a mans profite, and the va­luable 1 The diffe­rence betwixt a bailie, a so­licitor, and at­tourney, and a deputie, is shewed out of the ciuill law. increase of his wealth is committed Gazalup. in ver. villici.: an Attourney which wee tearme by the name of Procurator adiudicia is he which in place of iudgement doth for an other man by his war­rant complaine or defend ff. mandat. l. 1. §. 1.: and this may bee done either in the presence or absence of the master: but a solicitor which of vs is tearmed Procurator ad negotia, is hee that handleth the cause of his master being absent. And an At­tourney by our law must at the least bee of the age of xxv. yeares: but a sollicitor may bee, though he be but seuenteene yeares olde c. fi. de procu. l. 6. A deputie is hee to whome a speciall authoritie is committed to deale in a certaine businesse c. de offic. eius qui vic. gerit.. And there is this difference betwixt a bailie or a deputie, and an attourney or a sollicitor: be­cause in a baily or deputie the businesse which is committed to them, which we call negotium extra iudicium beginneth at the ministerial par­tie that is the bailie or deputie, and is transfer­red vnto the Lord or master: for the effect of the businesse whether it be profit or charge be­longeth to the Lord: but the busines of the At­tourney or sollicitor, which we call negotium in iudicio is originally in the Lord or master, & af­ter (as we say) transfunditur in procuratorē, it is conueied to the attorney or sollicitor l. si procura­tor meus ff. de neg. ge..

[Page 46]

Canonol. We make no such difference in our 2 The diffe­rence holdeth not in the canon law. law: for euerie one which doth administer an other mans busines, we cal by the name of pro­curator 1. q. 3. saluat..

Anglon.

The common law doth in this more agree with that which Codicgn. hath said. I will 3 The cōmon law according to the afore­said difference doth more a­gree with the ciuil then with the canon law. speake of this difference as the cases in our law concerning it shall come to my memorie. The name and office or duetie of a sollicitor stretch­eth verie farre in our law: for it may extend to the procheinamy the next friend, by whom an infant or one within age shall sue an action: or to the warden of the infant by whome the in­fant shall be defendant in an action 13. E. 3. At­torney. 76. 40. E. 3. 16.: And an infant was receiued to sue a writte of error by his warden 27. Assi. pl. 53. Fitz. N. B. 27. H.. And an infant shall not remoue hir warden, nor disauow his next freind, which sueth an action for him 34. Assis. pl. 5. 27. Assis. pl. 53.. But by a writte out of the Chauncerie the infant may remoue his warden, or the Court by their discretion may remoue him Fitzh. N. B. 27. M. 27. Assis. pl. 53.. But as to the making of an At­tourney we haue this rule in our lawe. Nemo potest facere Atturnatum nisi habeat proprietatem in re, & ideo custos non potest facere Atturnatum quia non habet proprietatem 13. E. 1. Attourney. 103.. In a writte of At­taint the defendant made an Atturney in the Chauncerie by a common writte de Attor­nato faciendo, the tenor whereof was ad lu­crandum & perdendum in loquela quae est coram Iustitiarijs per breue nostrum inter I. S. [Page] petentem, & I. N. tenentem de placito terrae &c. but the warrant of the plaintifs attourney must be thus ad conuincendum 12. Iur. de placito terrae &c. per viginti quatuor &c. 2. E. 3. Gar­rant. dattour. 21. But the power & authoritie of the attourney is by the iudge­ment determined and carried backe to the ma­ster. Wherefore it was saide 4. E. 3. that after iudgement the attourney was not receiued to release the dammages, nor to acknowledge sa­tisfaction 4. E. 3. At­tourney. 18. 34 E. 3. 95. 34. H. 6 51. 1. E. 2. Gar­rant. 22.: contrarie to the booke of 33. H. 6. k But there is great difference betwixt a bailie, & a deputie: for though a bailie haue a larger scope of authoritie, and power then an attur­ney or sollicitor: yet he hath but an authority: but a deputie hath an imperfect interest mixt with an authoritie, which by cases accomoda­ted to this purpose shall be euident. The bailie of a mannor cannot lease the lands of his Lord but onely at the will of the Lorde: for I doe not take the booke of 2. E. 4. to be law, that the bailie may lease lands to hold at his owne will, yet that booke giueth an action of debt, if a rent bee reserued vpon the lease to the Lorde, not to the bailie 2. E. 4. 4.: but 8. E. 4. is the better law in my opinion, where it is helde, that the baily of a mannor cannot make any lease of the man­nor, nor of any parcell of it without speciall commaundement of the Lord to doe it 8. E. 4. 13.. But if he cut downe trees, or kill any beastes going [Page 47] vpon the land of the manour, without lawfull cause, an action of the case will lie against him 2. E. 4. 13.. And 19. E. 3. it was held, that by no vsage in the world a Bailie or Steward of a manour could lease the freehold 19. E. 3. Feoff. 68.. But it is held by Catesby 8. E. 4. that the Lord may giue power (in ex­presse wordes) to his bailie to lease land, and if the bailie hauing receiued such authoritie doe lease an acre of land vnto a stranger, and doth not giue to the Lord notice thereof, if the Lord enter into this acre, the lessee may punish him by an action of Trespas, and yet he had no notice thereof: but the reason is because he had before giuen such a power to the bailie 8. E. 4. 1. et 9. Dutch. de Suffolkes c. per Catesb.. And therefore I thinke that the book of 2. R. 3. which is, that the bailie hath power to lease land, and to improoue it, is to be intended (by speciall warrant, and authoritie of the Lord committed vnto him.) But it seemeth that of himselfe he may sell trees if there be great a­bundance, and may repaire houses with them, but he cannot reedifie houses with them, if they be falne 2. R 3. 14. 12. H. 7. 25. But that a deputie hath an interest conioined with an authoritie in the thing, which is deputed vnto him may be thus prooued, 11. Elizab. it was cleerely resolued, that two daughters being heires to the Consta­ble of England, might make their sufficient De­putie to exercise the office for them, and after mariage that the husband of the elder onelie [Page] might performe the office 11. Elizab. 285. Dy.. And 39. H. 6. it was agreed by all the Iustices, that if a man haue an office, and maketh a deputie, which misuseth the office, the grauntee or inheritour of the office shall forfait it, for the deputie is sub officiario, and the officer remaineth officer vntill the forfaiture 39. H. 6. 32.. And these wordes (that the deputie is sub officiario) are so in my con­ceit to be vnderstood: as the lessee at will is vn­der the lessor, in case of a demise of land: But there may be a forfaiture in the one case, and not in the other, because in the office deputed there is a speciall authoritie mixt with a speciall interest. And Quaere, whether for the dette of the deputie the office may not be extended whilest it is in the deputies handes.

Codign.

Surelie it seemeth that the deputie 4. That by the ciuil Law, con­trarie to the common Law, there is no ma­ner of interest in a deputie. hath no interest at all in the office, and that may appeare by the obseruation of auncient times. For if a man may compare greater things with lesse, the Quaestor of a Prouince was a deputie to the President or Gouernour of a prouince in his absence: but yet their power was di­uerse, and the interest was not assigned, but resembled, as Caesar doth rightlie distinguish them: Aliae sunt legati partes, aliae imperatoris, alter omnia agere ad praescriptum, alter libere ad summam rerum consulere debet Caes. lib. 3. de bello ciuil.. The office of a Deputie or Lieutenant, and the office of a Gouer­nour, or Commaundour are diuerse: the one of [Page 48] them (that is the deputie) doth all thinges by the prescript of his commaundour: the other free­lie prouideth for the maine, and principall conse­quence of thinges. And briefely and substan­cially he thus describeth the duetie of a De­putie: Officium legati fiduciariam operam obti­nere Caes. lib. 2. de bel. ciui.: And that a deputie is but as a minister to the principall officer, may appeare by Cice­roes precept to his brother: Sit annulus tuus non vt vas aliquod, sed tanquam ipse tu, non minister alienae voluntatis, sed testis tuae Cicer. ad Q. fratr.. Let not thy ring be as a vessell to be vsed at any mans plea­sure, but as thy selfe, not as a seruant to an other mans will, but as a witnesse of thine owne.

Nomomath.

What if the Master doe pro­mise [...]. Diuision. vnto his Bailie or Attourney, that if he can procure him the possession of the land in question, he shall haue the halfe, or some part of it for his rewarde: Will your Lawes allow of such an assumpsit?

Codicgn.

Our Law doth not allow it: But 1. That the bailie or at­tourney may not take halfe the land for purchasing or compassing the other half. he may safelie take a speciall collaterall reward for that particular effect Gazalup. in ver. procu­rat..

Canonolog.

So in our Law, he that giueth part of the profites of a benefice to be admitted to the benefice, is so far from being allowed, 2. That the like matter is forbidden by the Canon Law. that his fault is accompted to be enorme, and in­dispensabile 13. disti. nerui.: For it is held to be simonie, & cor­rupt cheuisance, if any valuable consideration be giuen in such regard pacto, vel facto. And he [Page] that buyeth so, is called Simoniacus of Simon Magus, and he that selleth so, is called Gieziti­cus of Giezi 1. q. 1. Stu­det..

Anglonomoph.

In our Law it is held, that 3. The com­mon Law a­greeth with them. there is no diuersitie, where a man selleth land depending a writ petitorie of the same land, or doe giue it depending the writ: for in both cases there is Champertie 8. E. 4. [...]9..

Nomomath.

I praie you let me know whe­ther 7. Diuision. anie persons be accomptable by the meere and sole operation, and enforcement of Law.

Codicgn.

Yes, there be two sortes of ac­comptes: publike, and priuate. The publike 1. Two sortes of accomp­tants by the ciuill Law. accomptes are such as are to be made by a pub­lique officer, who is charged with some spe­ciall administration appertaining to the com­mon weale L. officia­lis c. de epis. et cler.. For the Presidents of Prouinces amongest the Romanes did customablie vse to make vp their accompts before they departed out of the Prouince, to which accompt they were obliged by Law: Therefore Cicero saith: Illud certe factum est quod Lex iubebat, vt apud duas ciuitates Laodicensem et Apamensem, quo­niam ita necesse erat, rationes confectas et conso­lidatas deponeremus Cicer. ad Rufum.. Priuate accomptes are such as belong to priuate men by the admi­nistration of their goodes or affaires, as the proxies or bailifes of priuate men.

Canonolog.

The same difference doe we 2. Likewise by the common Law. hold in matters of accompt d. l. officia­lis ibid..

[Page 49]

Anglonomoph. And by our Law there be 3. And also by the common Law. some which be accomptable by Law: some by a particular charge imposed vpon them, or vndertaken of them. And in the former case a writ of Accompt will lie, though there be no priuitie infacto, but onlie in Law. Wherefore Mast. Prisot said 33. H. 6. that the king might bring a writ of Accompt against one, as his bai­lie, who did occupie the land de son tort de­mesne, of his owne wrong. And the same Law is (as he there affirmeth) if a man occupie the manour of a common person de son tort de­mesne. And according to Wangf. opinion, if a man seise an Infant as wardein in Socage, and is not the prochein amy, yet a writ of Accompt lieth against him: but there he claimeth to the vse of the Infant 33. H. 6. 2. per Prisot et Wangf.. And the same Law seemeth it to be to Mast. Brooke Brook Ac­compt 8., where a man pre­sumptuouslie and of his owne head vnderta­keth to be my bailie, a writ of Accompt will lie in such case: But if he enter to his owne vse, there it seemeth (saith he) that a writ of Ac­compt will not lie: for there Ne vnques son Re­ceiuor pur accompt render, is a good plea. And 49. E. 3. a writ of Accompt was brought against the Lord by the tenant, as occupier of the land which the tenant now plaintife holdeth of the defendant in Socage, and the def. said that the auncestor of the plaintife did hold the land of him by knights seruice, wherfore he seised the [Page] land in warde 49. E. 3. 10.. By which case it appeareth that a writ of Accompt is admitted to lie against the occupier of the land without any priuitie in facto. And 4. H. 7. it is held by Brian, that if a man receiue my rent of my tenants with­out my assent, yet I shall charge him for the possession, and receit of the rent 4. H. 7. 6.. But a writ of Accompt will not lie against a disseisor, be­cause that cannot be without priuitie in Law, or in facto, as by assignement, or as Warden, or in like sort, or by the pretence of the defen­dant of occupying to the vse of the plaintife 2. Mar. Br. Accompt 89..

Nomomath.

I will not presse you any fur­ther with mouing doubtes of Accompts, but will now make transition to other matters that remaine to be discussed.

The fifth Dialogue.
Of Wast done in a mans Ground.

NOmomath.

The next matter that by order offereth it selfe to your conference, is to treat of Wast done in a mans land: And for my more perfit apprehension of the thinges concerning that point, I will pre­scribe vnto you certaine particulars, wherein you may imploy your trauell for my further instruction. First, of what things Wast may be committed. 2. What thing properly your Lawes censure, and determine to be wast. [Page 50] 3. What punishment by your lawes is to be in­flicted vpon these that commit wast? You shall doe me great pleasure in vnfolding the secrecie of your knowledge hereof. And first to begin 1. Diuision. with the first, let me know of what things wast may be committed.

Codicgnost.

Wast may be committed in suffe­ring 1. Of what things wast may be com­mitted by the ciuill Law. the walles of houses, or closes to fall Gazalup. verb. rudera.. So if there be a wood which is thick with great tymber trees, which in Latin is called Saltus, or which is but thinly set with slender trees wher­in hunters may ride vp and downe, which the Latinists do call Nemus, spoile or hauock made in such woods may be accompted wast C. de [...]un. pa. et Salluen. li. 11.. But 2. Cutting of wood in silua caedua by the ciuill Law is [...]o wast. to cut wood in silua caedua which is apt to be cut is no wast, and therfore it is said apt to be cut, because it groweth easilie again. Neither doth wast seeme to be committed in silua pascua, if brush-wood, small wood, or vnderwood be cut for the better pasturage of the beasts that go vp­on the soyle. Likewise wast may be committed in cutting down trees which grow sparsim, here & there in the land which is demised to farme: for this is wast in the land it selfe, because Ar­borum non est seperatum corpus afundo. But this word Arbor extendeth by our Law very far, for it may be affirmed of Vines, which not­withstanding by reason of the tendernes of them may seeme to obteine a middle nature betwixt a tree, and an hearbe. Likewise to iuie, [Page] though that doe rather cleaue to trees, then participate the nature of trees: And the name of Arbor doth extende to reedes, and to wil­lowes. But the cutting of some trees, that is the lopping or pruning of them may be more a­uaileable for their growth, so that onelie their cutting downe, and not their cutting only shall be adiudged to be Wast. Such trees are named of vs Arbores caeduae: which may grow againe either by the same stocke, or by some other impes, which may be grafted vpon them. Such are the Cherie tree, the ashe, the medlar tree, the oake, the laurell, the alder tree, and the poplar tree ff. Arbo. furtim. caesa. l. 1. et l. vitem. et in gl. ff. de arbo. ceden. l. 1. §. arbo.. But the cutting down of such trees may well be called wast, and is punishable by our Law. And to open the sluces of the riuer Nilus is sharpelie punished C. de Nili. agge. non rumpen. l. vnica..

Canonolog.

Our Law doth not in any of these things varie from yours.

Anglonomoph.

Of all these things, vnlesse it be reedes, iuy, & the like things which do more ap­proch to the nature of weedes, then of trees, we hold in our Law that wast may be cōmitted.

Nomomath.

Well, then I pray you shew what may properly be tearmed Wast by your Law Anglonomoph. and for that purpose consider well of the points of the former speech of Co­dicgnostes, who hath shewed promiscue, both of what things wast may be committed, and what may be said to be Wast.

[Page 51]

Anglonomoph. I will by your pacience seue­rally conferre the parcels of his discourse with the determination of our law concerning that which may properly be said to bee waste (for the other point will be thereby manifest,) as he hath before pronounced by their law. Waste may bee committed in the decay or demolish­ment 3 The cōmon law agreeth with the ciuil that wast may be in the de­cay of an house. of an house: this likewise is waste by our law; therefore in an action of waste, 42. E. 3. the declaration was that the tenant had done wast in certain tenements demised vnto him by the predecessor of the plaintife for tearme of life, and the wast was assigned to bee in a chamber, a furnace, and a graunge: and the defendant said, that there was no chamber at the time of the lease made: but by the opinion of Cand. hee ought to haue said (nor at any time after) wherefore so hee did 42. E. 3. 22.. But the termor is not bound to repayre houses which were ruinous at the time of the lease made vnto him 12. H. 4. fol. 5 10. H. 7. 3. 12 H. 8. 1. 7. H. 6. 40.. And if all the house in such case do happen to fall saue onely the postes, and the termor abateth the postes, this is not waste, because waste must be assigned in a house (or some like tenement) so it is if a house newly edified be abated, which house was neuer couered 40. Assis. pl. 22., (and therefore may not properly bee said to bee a house, as I take it by the ciuill law: for a house according to the ciuill law doeth consist of foundation, wall, and couer Spi. egeli. verb. aedes & domus..) And 38. E. 3. waste was as­signed [Page] in a graunge, which was worth but 4. S. and because it was of so small value, that none would hold it nor maintaine it, it was held to bee no waste 38. E. 3. 7.. Yet M. Fitzh. citeth a case out of 34. E. 3. that if waste be done by the warden to the value of 20. pence, this shal be adiudged waste, and the plaintife shall recouer Fitz. N. B. 60. c.. And the booke 14. H. 4. is, that if a man cutte trees, but to the value of three shillings 4. pence. This shall be adiudged waste 14. H. 4. 11.. But a wall or pale, which hath beene couered with thatch or tim­ber, if the tenant suffer it to be discouered, this shalbe said to be waste 44. E. 3. 44. 10. H. 7. 21. 22. H. 6. B. 16. H. 7. per Fin. waste. 131.. But if a house become ruinous for default of some couering, at the time of the death of the auncestor, and after the tenant suffereth the house to be more rui­nous, the heire may haue an action of wast for the late ruine, which happened after the death of the auncestor 2. Mari. Br. wast. 117.. Neither is it sufficient in barre of a writ of waste of a house that the de­fendant hath built a new house in lieu of that which is fallen, but the defendant must say that it is as much in length, and as much in latitude as the other was, or at least hee must say, that it is as profitable: but when a house is rui­nous and decayed at the time of the lease of it made, and it afterwarde falleth, and the de­fendant buildeth a newe, it is not necessarie that hee should make an other house of equall longitude or latitude 22. H. 6. 18.. And the necessitie of [Page 52] building a house ought to come in question, as if the lessee haue great need of a stable: and if no house be built vpon the land at the time of the lease, the lessee may not cutte trees to make an house 11. H. 4. 32.. But if waste bee made by the kinges enemies or by tempest, the tenant shall not therefore bee punished by a writte of Waste 43. E. 3. 6.. Yet in such case a speciall coue­nant will binde the tenant. And therefore it was adiudged 15. Elizab. that whereas the termor did couenant and agree pro se & exe­cutoribus, to repayre and maintaine the hou­ses, and to finde principall timber, which is decayed by the default of him or his execu­tors, and dyeth, and the house is burnt in defaulte of the executors, that a writte of couenaunt in this case woulde lye agaynst the executors, and that dammages shoulde bee recouered de bonis testatoris, and not con­dicionally, if there were none such, of their owne goodes: and yet this happened by ca­sualtie 15. Eliz. 324. Dy.. But the reason thereof is giuen in an other place, Modus & conuentio vincant legem 28. H. 8. 19. Dy.. And 29. Henrici octaui, the lessee of a meadowe did couenaunt and agree to keepe and maintaine the bankes in good re­paire, and the saide bankes were drowned & ouerflowed by high waters or sodaine floud, yet the lessee is bounde to repayre and main­tayne them because of his couenaunt, but [Page] according to the opinion of Fitzh. and Shelley, because the decay of the bankes was the acte of God, he ought to haue conuenient time to re­paire them 29. H. 8. 33. Dy. 35. H. 8. 56. Dy.. Now I will shew how and in what cases the cutting of wood & trees is wast by our law. It is cleare by our law, that the te­nant may cut trees for the amendment of hou­ses, 5 The tenant by the commō law may cut trees for the reparation of houses. and the reparation of them, but if the hou­ses be decaied by the default of the tenant, the cutting of trees to amend them is waste 44. E. 3. 21. & 44. 11. H. 4. 32.: but the lessee may not in any sort cut apple trees for the amendment of houses Temps E. 1. waste 122.. And 7. H. 6. it is said, that he shal not meddle with great timber­woode without the assent of his lessor: other­wise it is of seasonable wood which is but of the age of ten yeres or therabout 7. H. 6. 38.. But the cut­ting of dead wood is not waste Fitzh. N. B. 59. M.: And the ter­mor hath house-wood, hedge-wood, and fire­woode belonging to his tearme of common right: and he may cut wood for that purpose 21. H. 6. 50.. But if hee cutte wood to burne where there is dead wood sufficient this is waste 20. E. 3. waste. 32.. And it is not waste to cut seasonable wood which hath vsed to be cut euerie twentie yeares, or within 6 The commō law agreeth with the ciuill in the cutting of Silua caedua. that time 7. H. 6. 40. 11 H. 6. 1.. And the cutting of thornes is no wast because they are not fit for timber 46. E. 3. 17.. Nei­ther is the cutting of willowes waste, vnlesse they lie about the site of the mannor 40. E. 3. 15. 10. H. 7. 2. 12. H. 8. 1. 12. E. 4. 1.. And the termor may cutte vnder-woode growing vnder the great trees, and the high wood, but [Page 53] if there bee no high wood, or great trees there, he can not cut at all 40. E. 3. 25. 10. H. 7. 2.. And whereas Codicgnost. hath said, that the lopping & pruning of some 7 The com­mon law a­greeth with the ciuill in tollerating the lopping of trees, which may be auail­able for their growth. trees may be more auailable for their growth, & therefore the cutting of them is not wast, be­cause they may grow by the same stocke or by some other imps grafted vpon it: In verie truth our lawe runneth with this streame. For as I haue shewed before, to cutte seasonable wood is no waste: but if certaine sprowtes or braun­ches doe grow vpon the stocke, the cutting of these sprowtes or braunches or the destroying of them is wast 5. E. 4. 102. 9. H. 6. 42. 11. H. 6. 1. 22. H. 6. 14. And plantes which can not be conueniently sold, neither beare any fruite, yet (because of the possibilitie of the fructify­ing of them) if they bee cutte downe, this is waste 20. E. 3. waste. 32..

Nomomath.

Well, I pray you satisfie mee in this: If a man ought to keepe certaine bankes in repaire, whereby the land adioyning, and which he hath in farme, may be better kept & yeeld more profite, and hee doth not repaire these bankes, but suffereth the sea to ouerflow them, and so to make the lande a great deale worse, whether is this by your law accompted waste Anglonomophilax, according as Codicg­nostes hath shewed of opening the sluces of Nilus.

Anglonomoph.

By our law if such bankes be not repaired, whereby the land demised that [Page] is adioyning is ouerflowed & made vnapt for 1 That both by the ciuill law and com­mon law where land is empeired by the inundation of water this is wast. 3 Diuision. present profite, this in our lawe is accompted waste 20. H. 6. 1..

Nomomath.

Well, now I pray you resolue me in this, whether is it lawfull for the termor to digge in the land demtsed, for water, mines, or treasure hid, or this shal be accompted wast, if hee doe it without the permission of the lessor.

Anglonomoph.

He that commeth to land or to any other thing by an other mans graunt or 1 That by the common law he that com­meth to land by an other mans graunt ought to vse it according to the graunt. demise can not vse the lande or that which is graunted, further then the graunt or demise be­ing reasonably construed will permit. There­fore if a man be seised of a stagne or pond sto­red with fish, and he sell and the fish in the pond to a straunger, the grantee may not digge the land &c. to make a trench, because he may take the fish with nettes or other engines Perk. tit. Graunts. 23.. But if a man grant to me licence to make a trench from such a fountaine in his land to my mannor of Dale, and that I may put a conduit-pipe in the land to conuay the water to my mannor, if af­ter the pipe bee stopped, I may dig in the land to amend the pipe 13. H. 8. 15.: because that is as it were implied in the graunt: but if a man plough vp meadowes demised vnto him, this is waste 20 H. 6. 1. 16. H. 7. wast. 131. Fitzh. N. B. 59. N.. So if the termor doe alter woode into arable, this is wast, or arable into meadow, this is wast. For this is preiudiciall to the inheritance: for [Page 54] the euidence concerning the lande serueth to proue an other thing 29. H. 8. 35. Dy. Maleue­rers. C.. And so it is if land bee ouerflowed for default of repayring bankes 20. H. 6. 1.: but of this I haue lately spoken, and therefore will rather apply other cases to the opening and explaning the reason hereof. The dig­ging in the lande demised for claye, or for 2 The digging for clay or cole in the land demised is wast by the common law. stone, or for coales shall bee said to bee waste 2. H. 7. 14. 22. H. 6. 21. 9. H. 6. 42. 17. E. 3. 7. for the reason abouesaid: and likewise because the soile by that meane becommeth worse 22. H. 6. 18.: & according to M. Fortescues report 20. H. 6. if the particular tenant haue not kept the water from the ground, so that it is made waste by the gro­wing of rushes and other weedes, this hath bin adiuged to be wast, and the wordes of the writ were: Quòd permisit aquam terram illam inun­dare, 3 The suffe­ring of the ground to be­come rushie or weedie, by the common law is waste. ita quòd deuenit iuncosa 20. H. 6. 1. per Fortesc.. But 33. E. 3. the defendant iustified in a writte of waste because hee did cutte downe an elme tree in the place where the waste was assigned, and did make a ditch in that place to water cattell, which went vpon that ground, which was necessary, because the water was very lowe, and almost dryed vp in that place, & by that meane he de­duced water out of the earth, and this was ad­iudged a good answere 33. E. 3. Double plea. 9.

Codicg.

That which you haue said is to reason consonant, to our law correspondent: for as to your first case of the clearing or amending of [Page] the conduit-pipes &c. Though it be in another mans ground, this in our law is not accomp­ted iniurious l. 1. c. de quae duc. l. 11. & l. de cerni­mus eo. ti. li. 2.. But wee haue a rule in our 4 That the ci­uil law agreeth▪ with the com­mon law▪ in suffering and to amend con­duit-pipes in another mans ground. lawe: that if a man ought to conuey water per subterraneos meatus, through certain chinkes or crauies of the earth in an other mans ground, he must not doe this by a leuill of stones, but with pipes of leade, because the other mans grounde is by stones more annoyed and em­paired ff. de con­trah. emp. l. si aquae duct.. But for the improouing of ground from worse to better, is clearely permitted by our law. As to turne waste grounde into ara­ble, or fennish ground into firme ground, this we accompt rather a benefite to the owner of the soyle, then an iniurie c. de fund. patr. l. si. li. 11.. So it is, if a wood become arable c. quod per noual. de verb. signif.: but to destroy any thing in an other mans ground, or to digge a pitte, and so to alter the forme and nature of the soyle, and by that meane to make it worse is accoun­ted of vs very iniurious, but to repaire an olde building, or to make some commodious addi­tion, is not wrongfull, but beneficiall, because Non videtur nouum opus facere, sed vetus re­ficere ff. de noua. l. 1. §. nouum. et §. si quis aedificium..

Canonol.

Our lawe doth not withstand any of these assertions.

Nomomath.

Well, now I pray you proceed 3. Diuision. to speake of the penaltie which hee is to suffer by your lawes that committeth waste.

[Page 55]

Codicgn. By our Law he that in such case 1. The pu­nishment of wast by the Ciuill Law. will denie the wrong done shall be punished with double damages: But if he iustifie, and it be found against him, with single ff. de insti. l. 1. §. 1.. But he that doth breake the sluces of Nilus, so that verie great iniurie is done, and to verie manie, he is burnt in the same place, where the fault was committed, in a fire of the height of twelue cubites, and his goodes and landes are confis­cated, because it is crimen, quasi laesae Maiesta­tis C. de ag­ge. Ni non rump. l. v [...]. [...]..

Canonol.

Our Law in this doth not gainsay you.

Anglonomoph.

By an action of Wast at our 2. The pu­nishment of wast by the common Law. Law, the plaintife if it be found for him, shall recouer treble dammages Fitzh. nat. bre. 58. H.: and execution may be had by Elegit of the landes, which the defendant had at the time of the inquest ta­ken 17. E. 3. 5. 18. E. 3. 38. 31. E. 3. Exe­cut. 66.: and he shall recouer likewise the place wasted Stat▪ Glouc. cap. 6..

Nomomath.

I will put you to no more paines in this matter, but will discend to other things which haue not yet been discussed.

The sixt Dialogue.
Of Parceners.

NOmomath.

Let me know Codign. whether in your Law there be any definition set downe & established 1. Diuision. touching Parceners, as they are tearmed at the common Law, and concerning the making of Particion betwixt them, agree­able to the common Law.

Codicgn.

I would first that Anglonomoph. should shew who be Parceners at the com­mon Law, and in what sort partition is made: otherwise I should but roue at an vncertaine marke.

Nomomath.

I pray you do so Anglonomoph. for that course is not to be disliked.

Anglonomoph.

Mast. Littleton, a learned man 1. Two sortes of Parceners: Parceners by the common Law, and Par­ceners by cu­stome. in our Lawes, and a great patriarch of our pro­fession, maketh two sortes of Parceners: Par­ceners by the common Law, and Parceners by custome. Parceners by the common Law are when a man or woman seised of landes or tenements in fee simple, or fee taile, haue no issue but daughters, and die, and the tene­ments discende to the daughters, and they en­ter into the said landes or tenements, now they are Parceners, and how manie daughters so [Page 56] euer they be, they are but one heire to their auncestour. And they are called Parceners, 2. Who be Parceners by the common Law. because by the writ, which is called de Parti­cione facienda, the Law will compell them to make particion of the land. Also if a man seised of tenements in fee simple, or in fee taile, do die without issue of his bodie ingendred, and the tenements discende to his sisters, they are Parceners by our Law. So if his landes dis­cende to his Auntes Littlet. lib. 3. c. 1. fol. 54.. And none bee cal­led Parceners in our Law, but women, or the heires of women which come to landes and tenements by discent. For if two sisters purchase landes or tenements, thereof they be called Iointenants, and not Parceners Littlet ibi­dem fol. 56.. But bretherne may be Parceners by the cu­stome, as by the custome of Gauelkind in Kent Littlet. ibid. 59..

Codicgn.

We haue an action in our Law 3. Who be Parceners by the Custome. verie like to your aboue mencioned writ of Particione facienda, and it is called actio fami­liae herciscundae, and it lieth for them which haue a common inheritance to bee deuided betwixt them: As when two sisters, bro­thers, or kinsfolkes are instituted heires, and by that meane are reputed as seuerall heires to the auncestor, or him that instituteth them ff. famil. hercis. l. 1. et 2. C. de verb. sign▪ l. sin.. For if the Testatour pointing with his fin­ger at three seuerall persons doe saie vnto [Page] them, quilibet vestrum haeres mihi esto, his 4. That by the Ciuill Law where three heires are in­stituted, they are not repu­ted as one heire. meaning by our Law is taken to be this, that euery one of them should be heire in parte, non in solidum, for maeteria subiecta the thing it selfe doth require it, because it is vnpossible by our Law, that euery one of them should haue the inheritance in solidum L. hoc ar­tic. ff. in fi. ff. de haere. insti.. But if he doe not speake distributiue, but collectiue: as if he said, Quisquis mihi haeres erit, det Titio centum solidos: now whether there be one heire or more heires then one, yet Titius shall haue but fiue pounds, because of the collectiue word quisquis L. ab omni­bus in princip. ff. de leg. 1. et l. si quis in fun­di vocabul. in fi. eo. ti.. But if the Testator doe say, Quicun (que) primò ingres­sus fuerit Castrum, habebit centum solidos, and two doe enter the Castle together, they shall euery of them haue fiue poundes, because of the distributiue word quicunque, which may be verified either in one or moe doing the same act at one time, because primus est qui alium ante se non habet L. qui filium §. 1. ff. de leg. 1.. And if the Testator saie, Quilibet haeredum meorum, det Titio decem soli­dos, Titius shall haue as many tenne shillinges as theire be heires L. si pluri­bus. et ibi no. gl. ff. de leg. 2.: which prooueth that by our Law, the seuerall heires are not accompted as one heire.

Canonolog.

Our Law holdeth not the con­trarie.

Nomomath.

You haue good reason for it. But I pray you resolue me Anglonomoph. are these which you call Parceners reputed in your [Page 57] Law as one heire to all intents.

Anglonomoph.

Yea to all intentes in re­gard 5. That by the common Law parceners are reputed as one heire, as to the discent of landes. of the discent, though as to the making of particion it accompteth them as seuerall per­sons Fitzh. nat. bre. 197. A.. For a Nuper obis [...] ought to be brought by that Coparcener, who is deforced from the 6. Parceners in regard of the particion are accomp­ted as seue­rall persons. tenements against all the other Coparceners, which do deforce her, although some of them haue nothing in the tenancie 32. E. 3. Nuper obijt. 7. 9. Ass. pla. 8.: For seuerall tenancie, or nontenure is no plea in a Nuper obijt, because of the priuitie of bloud 7. E. 3. 16. 9. E. 3. Nuper obijt 8. 8. H. 6. 8..

Nomomath.

Whether shall a writ de Parti­cione 2. Diuision. facienda be vsed against Iointenants or te­nants in common, as well as against Parceners, or some other remedie, shall be vsed against them.

Anglonomoph.

Before the Statute of 31. H. 1. The statute of 31. H. 8. gi­ueth a writ de Particione fa­cienda as well to Iointenants and tenants in common, as to parceners. 8. Iointenants and Tenants in common were not compelable by writ to make particion of landes and tenements which they vndiuidedly held. But by that Statute a writ de Particione facienda may be sued against them as against Parceners 31. H. 8. c. 1. Rastall Parti­cion 3.. But by the common Law Iointe­nants may make particion by mutuall assent without deede 47. E. 3. 22. 19. Ass pla. 1.. And by such particion the iointure is seuered 30. Ass. pla. 8.. 2. The three seueral actions against Parce­ners, Iointe­nants, and te­nants in com­mon at the Ciuill Law.

Codicgn.

By our Law seuerall remedies are vsed against these which be both of one bloud or one familie, which you haue tearmed Par­ceners: as an action de familia herciscunda: and [Page] an other maner of action against such as come to the land by ioint title, though not by one discent, which you haue tearmed Iointenants, namely an action which is called of vs Actio pro socio: and an other against these which come not in by ioint title, but yet claime vnder these which came to the land by ioint title, as by your Law are Tenants in common, against whom, or betwixt whom, for the effecting of particion, an action lieth at our Law which we call Actionem de communi diuidundo.

Canonolog.

To this our Law is not contra­dictorie.

Nomomath.

Let me now vnderstand in 3. Diuision. what sort particion of landes or tenements and other thinges is made by your Lawes.

Anglonomoph.

Of landes and tenements the 1. Diuers kinds of par­tion at the common Law. particion by our Law is to haue a seuerall part or portion, as to haue a third part, if there be 1. A particion to haue a third part, or a fowerth part. three Coparceners, or a fowerth part, if there be fower &c. And if there be two Copar­ceners, and one of them releaseth to the other 2. A particion by way of re­lease. with warrantie: this hath been helde to be a good particion in Law 44. E. 3. Counterplee de vouch. 22. 34. E. 1. Parti­tion 17.. And particion of landes is sometime made by the graunt of 3. Particion by the graunt of a thing de nouo. a thing de nouo: as if an hundred shillinges of rent be graunted by one of the Coparce­ners to two of her sisters for equalitie of par­ticion 2 H. 6. 14.. So when land entailed is deuided [Page 58] betwixt Parceners, and a rent is reserued vpon 4. Particion by way of reserua­tion. the particion for equalitie, the rent reserued shall be in taile, and of the same condition whereof the land was at the time of the par­ticion made 2. H. 7 5. 15 H. 7. 14.. But a particion of a Mill is by taking the third part, or the fowerth part of 5. Particion by taking the 3. part, or the 4. part of the profites. the profites, as the case requireth 11. E. 3. Briefe 478.. And 45. Ed. 3. it was ruled, that Milles, Douecots, and the like, could not be actuallie, locallie, and as I may saie artuatim, as it were by iointes diuided. But if a woman ought to bee endo­wed of the third part of such thinges, the third part of the profites ought to bee assig­ned vnto her 45. E. 3. Dower 50.. Yet 47. Edw. 3. the case was, that two Iointenants were of a Mill, and they agreed to repaire the Mill, the one of them of the one side, and the other on the other side in perpetuum, and after the Mill was leased to farme, and they tooke the rent seuerallie ac­cording to the moities, and the Inquest said, that their meaning was, that the particion should bee good against them, and their heires 47. E. 3. lib. Ass. pla. 22.. But Quaere, whether the Shirife by writ de Particione facienda may make any such particion. Likewise particion may be of a re­uersion, that one of the parceners shall haue the reuersion of three acres, and the other the reuersion of other three acres, and it may be without deede Fitzh. nat. bre. 62. D. 28. H. 6. 2.. And so particion may bee made of a waie 21. E. 3. 2.. And also of a [Page] seigniourie 27. E. 3. 29.. But of an aduowson the parti­cion is to present by tourne 38. H. 6. 9. 42. Eliz. 87. Corbets case per Iust. Wal­mesley Co..

Canonolog.

Our Law agreeth fully with 6 A difference in the Ciuill law where a thing that hath partes coh [...]ren­tes is diuided, and where it hath partes distantes. yours in this, for either a thing hath partes co­haerentes, as a house, and this may be diuided by a seuerall occupation: Or els it hath partes distantes, as a load of woode, or a flocke of sheepe, and this may be membratim or corpo­rally seuered and diuided Ber. de ex­ces. prae lab. lib. 6..

Codicgn.

The verie same difference doth our Law reteine L. non am­pli. §. cum bo­norum. ff. de legat. 1..

Nomomath.

Well, I will sticke no longer in this plaine title. Now prepare your selfes for the sifting of more intricate pointes, then haue heretofore been handled by yee sithence the beginning of this second conference.

The seuenth Dialogue.
Of Conditions.

NOmomath.

In the treating of Conditions, I will not trouble you with any exquisite defini­tion of Conditions, because I doe imagine that I shall draw that out of the resolution of the cases, which I shall propose vnto you. My first question therefore is this: Whether doth the word 1. Diuision. [Page 59] ( Si) alwaies import and signifie, a condi­tion in matter of contract and limitation of estate.

Codicgnost.

It doth not alwaies signifie a con­dition, 1. Si doth not alwaies signi­fie a condition in the ciuill law. but sometime it signifieth an vncertain cause, as I promise to Titius ten pound, if he do accomplish my busines. Sometime it signifieth 2 Sometime it signifieth an vncertain cause 3 Sometime it signifieth a certaine cause. 4 Sometime an vncertaine euent. a certaine cause, as if the iudge do giue iudge­ment for me: sometime it signifieth an vncer­tain euent conditional, as I promise thee twen­tie pound if I. S. be in Westminster hall such a day, and sometime it signifieth a condition or 5 Sometime a condition. a conditionall disposition, which alwaies sus­pendeth the premisses or matter precedent l. itaqueff. si cert. pet. l. de monstra. ff. de condi. & de­monstr. § fi. Insti. de verb. oblig.: as if I promise vnto you Stichus my bondser­uant, & if I do not deliuer him vnto you with­in such a day, then I will giue vnto you twentie pound nomine paenae, here is both a condition, & likewise conuentio paenalis, which is presently to take effect vpon the breach of the conditi­on l. Stipulatus. §. 1. ff. de verb. obli.. So if the testator say, if my bondwoman shall bring forth three children at three labors, let thē be free: now if the woman bring forth foure children at two labours, they shall all bee free: for though there bee foure children, yet there is but a double labour, and in the eye of law bringing forth but two children: for all that bee brought forth at one birth, are but as one child in regard of their natiuitie, as our law intendeth, because the law respecteth that quod [Page] plerunquefit, and for the most part one child is borne at a birth, and not two or more l. Aretusa. ff. de stat. homi. l. cum mater. § fi. ff. de fidei commis.. And in this case, benigna interpretatio facienda est in fauorem libertatis. And because it can not bee well vnderstood whether of the two children shall be free, therefore both by construction of law shall be free.

Nomomath.

This seemeth straunge to mee, that two children should bee one childe, two procreations one birth, vnlesse it bee because the parents were one person in law, when they begot them. And surely Quintilian maketh two distinct procreations in your case, & ther­fore he saith. Quid refert an ex eisdem prima illa duorum corporum animorumque compago semini­bus oriatur? sibi quisque firmatur, sibi quisque componitur, & duo pluresue fratres nascuntur fato singulorum Quintil. in Gemin. lan­guent.: And Esau and Iacob famous twinnes were borne so continuatly (as I may say) together, that the later did holde the fate of the former Genes. 25.. Yet God forbid that wee should accompt these two one. Saint Augu­stine boldly and wittily distinguisheth them thus: Vnus duxit mercenariam seruitutem, ali­us non seruirit: vnus a matre diligebatur, alius non diligebatur: vnus honorem, qui magnus a­pud eos habebatur, amisit, aliter ademptus est. Quid de vxoribus, quid de filiijs, quid de rebus, quan­ta diuersitas August. lib. 5. de ciuitat. De. c. 4.? And therfore surely in this point I take your law to be contrarie to the course of [Page 60] nature.

Codicgnost.

It is not in the supposall of one procreation of two twinnes, eyther contrarie to nature, or arte: not contrarie to nature, because as there is one conception of two twinnes, so there is one puerpercie, though it bee finished at diuers times, for the labour still continueth, not contrarie to arte: for the Astro­nomers hold, that twinnes are alwaies borne vnder one Horoscope, vnder the same constel­lation, and the same situation of the starres: for the Horoscope in Astronomy, if it be formally taken is nothing els but horae inspectio, if it bee materially taken, it is that part of the Zodiacke which ascendeth vpon our hemisphere: for the Zodiacke circle is alwayes rowled about, and some portion of it doeth alwayes arise to vs, some doth alway decline: some is in one regi­on of the heauens, some in another, and chil­dren being borne vnder one situation of the stars, as they be like in the qualities both of the bodie and minde: so in the producing them to light, there is but one labour: in their cres­sence in the wombe, there is but one operation of nature.

Nomomath.

You haue rather aunswered mee, then satisfied mee: for I am perswaded, that I shall neuer bee of your opinion whilest I liue, neyther will I applaude to your lawe in this. But Anglonomophilax, I hinder you [Page] from examining the parcels of Codicgnost. his precedent speech of conditions.

Anglonomoph.

I will not meddle with Co­dicgnost. his midwiferie in handling matters of law, but will turne saile from it: as Cato disli­ked to prattle with women in the Senate house Liui. li. 34.. But as to the assertions of law, which he hath set downe, they shal not glance frō me without touch. Whereas he hath said that this word ( si) doth signifie an vncertaine cause in 6. Si doth sig­nifie an vncer­taine cause at the commō law. their law, so it doth likewise in ours, as appea­reth by Boldes case in my L. Dyers reportes which was thus. R. Bolde brought an action of debt against Molineux for 30. pound, vpon an obligation endorsed with this condition, that if it fortune Ioane Molineux to decease before the feast of S. Iohn baptist which shall be in the yeare of our Lord 1553. without issue male of her bodie by the said R. B. lawfully ingendred then liuing, that then &c. and the defendant said, that after the making of the said writing & before the said feast the aforesaid Ioane at B. in the countie of L. dyed without issue male of the bodie of the said woman by the said R. B. lawfully ingendred then liuing: and the plain­tife said, that hee ought not to bee barred from his action: for he said that after the making of the said writing, & before the said feast, name­ly the 12. of Iune, anno &c. the said plaintife at M. in the countie of Lancaster, tooke to wife [Page 61] the said I. and they had issue betwixt them H. Bolde, and after & before the said feast the said I. and the said B. dyed, the said H. being the sonne of them both at the time of the death of the said I. being then full liuing, and after and before the said feast, namely the twelfth of Iune the saide H. B. at B. aforesaid dyed, and the defendant hereupon did demurre in law. And the question was whether this word ( tunc) in the condition should be referred to the time of the death of the wife: and it seemed to Mountague and Baldwin that it should not, but that it ought to bee referred to a time cer­taine: for euerie tunc relateth to his quando, but they thought that it should bee referred to the feast which is certaine, and not to the death of the woman, which is vncertaine: but Shelley and Knightley thought otherwise. For in di­uers cases relation shall not bee made ad proxi­mum antecedens: as if a man make a lease for life the remainder in taile the remainder ouer to I. S. in forma praedicta, this shall not bee re­ferred to the estate taile, which doth next pre­ceed, because it wanteth the word (heires) to make an estate tayle, and therefore it shall be referred to the first estate. Which later opi­nion if it bee lawe, then by our law ( si) may signifie and may make other wordes to signi­fie an vncertaine cause of the accomplishment of a condition 28. H. 8. 14. Dy. Boldes C.. And whereas hee hath said [Page] that sometimes it signifieth a certaine cause (as if the iudge doe giue iudgement for me:) So likewise it signifieth a certain cause in our law, 7. Si, signifi­eth a certaine cause at the common law. for 8. E. 4. the case was this. An action of debt was brought vpon an obligation by the Dut­chesse of Suffolke: the defendant said, that it was endorsed with this conditiō that if the de­fendant should stand to the arbiterment of the said Dutchesse touching all maner of suits &c. betwixt him & one B. that then the obligation should be void &c. And this was admitted to be good, and thereupon it may be concluded that ( si) sometimes in our lawe importeth a cause certaine, as the Dutchesse in this case was a certaine cause of the arbiterment 8. E. 4. 1. & 9 Dutchesse de Suffolke C.. So 23. Eliz. the case was that two were bound to stand to the arbiterment of two, if they did make their awarde within two daies after the date or making of the said obligation, and the obligation bore date die Sabbati ante prandium, and the award was made the same day post prā ­dium, and this was held to be good, because it shall bee intended that it may be made at any time after the date of the obligation vntill two daies immediatly following be past. And as in 8. Si, by the common law may signifie an vncertaine euent. the ciuill law, so likewise by our law ( si) whe­ther it be expressed or implyed may signifie an vncertaine euent: for if a rent be graunted for life to I. S. the remainder to him that shall first come to Paules the next day in the morning, [Page 62] this remainder is good, though it be vpon a ( si implyed) if I. S. dye not before the next day, and if one come to Paules the next day in the morning, and if hee which commeth thither be a person able to take by the graunt Assis. pl. 47. Perk. 13. sect. 56.. And whereas he saith, that by their law it signifieth 9. Si. signifi­eth a conditi­on by the common law. a condition, or a conditionall disposition, so it doth likewise in our law, as it is well recited in my Lord Dyers reports out of Bracton: Scito quòd, vt modus est, si conditio, quia causa. And as l 4. Mari. 139. Dy. to his conceited case of the puerperie, I take his reason to bee verie good, that benig na interpre­tatio facienda est in fauorem libertatis.

Codicgnost.

What say you now sir?

Nomomathes.

I say that as for such a para­doxical fantasie, Non persuadebis etiamsi per­suaseris. 2 Diuision. But I pray you resolue me this: If I sel to another certain land for an hundred pound, vnlesse another the next moneth following doe giue more for it by fiue pound at the least, whether doth this word (vnlesse) make a con­dition, or it is an idle clause and vneffectuall.

Codicgn.

I take it clearely to make a good condition, for though the sale be pure and vn­conditionall, 1 The word ( nisi, or vn­lesse) doth sometime sig­nifie a conditi­on at the ciuill law. yet it is resoluble and defeasible vpon a condition contingent l. 2. §. si in diem ff. pro emp.: for the words following may qualifie and gouerne a direct graunt or deuise: as if the testator say, I deuise vnto A. a C. li. for the making of my tombe l. quib. die­bus. §. fi. ff. de condi. & de mon.: or if he said, I deuise vnto him a hundred li. pro [Page] eura liberorum meorum sustinenda: or if he said, I deuise vnto him so much to endow certaine poore maydens, or to ransome certaine priso­ners out of captiuitie, here there is no conditi­on implyed, but onely a limitation or modifi­cation to what intent or purpose the deuise is l. mille. C. de epi. et cle.. So if the testator say, I deuise to Titius C. li. 2 Law is a modification or limitation of a graunt is made. which I will shall be paied vnto him out of my money which I haue in such a place, as namely in such a closet, or such a chest: if in the closet or chest there bee no money, then there is no­thing due, but if there be a lesse summe, yet all the mony is due by reason of the intent l. quidam testamento. ff. de leg. 1. l. Lu­cius. ff. de ali. & ciba.. And if the testator deuise to euerie one of his free men a seuerall & certaine yearely maintenance out of his landes in Dale, if his landes in Dale be not sufficient for these seuerall maintenan­ces, yet they ought to be supplyed of his other landes l. Paulo Cal­limacho. §. fi. de leg.: because the adiection and mentio­ning of the place was onely vsed for a certaine demonstration of the lande which should bee charged with payment, and not for the taxa­tion or restraint of the legacie: for legatum non restringitur. But if a man deuise ten pound to his daughter vntil she mary, by this is intended a yearely paiment of x. li. l. legatum ff. de annu. lega., because the worde (vntill) doeth signifie in this case a limitation. And though there ought to be a multiplcation of paiments: yet there is a limitation ad tempus nubēdi, that afterward the paiment shall not be [Page 63] due: but if a mā deuise to his daughter his lands which he bought of Cornelius vntill she marie, this signifieth not a yerely legacie, because sub­iect a materia non patitur vt sit multiplicabile: But it onely signifieth an extinction of the legacie whē the mariage is accomplished. For if a man deuise his land in Dale to A. vntill he be Shirife of London, as soone as he is Shirife of London the legacie is determined, and immediatlie reuerteth to the heire L. fi. C. de leg.. For as it is in the power of the Testatour to make the legacie begin at a certaine time, so likewise it is in his power to make it end at a certaine time.

Nomomath.

You haue put good and perspi­cuous diuersities betwixt a condition and a li­mitation. I pray you Anglonomoph. shew what your Law determineth of this difference.

Anglonomoph.

The verie same difference is 3. A difference betwixt a limi­tation and con­dition at the common Law. in our Law, which by cases shall be explaned. A man graunteth to an other his manour of B. so that he paie 10. li. yearely to the lessour, du­ring the life of the lessour: and if the said rent be behind, that then it shall be lawfull for the lessour to distraine for it in the lessees manour of S. the lessour hath a franktenement in the rent sub modo, depending vpon the will of the lessee (and the lessour,) and there is a limita­tion implied by Law, though not verbally ex­pressed 3. E. 3. 15. Assise 172.. So if a man make a Lease to one for life, paying the first six yeares 3. quarters of [Page] corne, and if he will hold it longer a C. s. the word ( If) in this case maketh but a limitation 15. E. 3. Execution 63.. So if a rent of 5. pound be graunted to I. as long as the grauntour, his heires or assignes shall hold the manour of W. this was adiud­ged to be a freehold in the grauntee, but yet with a limitation 10. Ass. pla. 8. Br. Estates 31., ( as long as the grauntour should hold the manour of W.) So if a man graunt a common in his land in Dale, when he put­teth in his beastes, or graunteth an estouer of Wood, when he commeth to his manour of D. the grauntee hath a freehold, but qualified with certaine limitations 17. Ass. pla. 7.. So it is if the king graunt an office to I. S. donec bene & fideliter se gesserit 3. Ass. pla. 9. et 6.. So if land be leased to one quamdiu se bene gesserit 37. H. 6. 29.. So if a man deuise his land to his eldest sonne in taile, with seuerall remain­ders in taile, and that the partie morgaging, incumbring, entangling, or aliening the land, shall be clearelie discharged, excluded, and dis­missed touching the intaile, and the conuey­ance of the intaile shal be of no force vnto him, this is not a condition, but a limitation: for if it were a condition, the right heire might en­ter for the breach, and defeat all the meane remainders in taile, which is not consonant to the intent of the Deuisour 13. et 14. Eliz. Com̄ Newyses c. 403.. And whereas you haue said that a man by way of limitation may deuise money to be paied out of his chest or coffer, and if there be no money in the chest [Page 64] or coffer, there is no money due, our Law dea­leth 4. The com­mon Law is more ample and large then the Ciuil law in matter of limitation. more amplie and beneficially in like cases. For if a man graunt to me an annuitie of x. li. to receiue out of his coffers, if he haue neither coffers, nor money in thē, yet his person shal be charged with the annuitie Fitzh. Nat. bre. 152. A. 9. H. 6. 17., because the graunt it selfe induceth a charge vpon the grauntour. Yet an annuitie may be graunted with a limita­tion: as if an annuity be granted to take at euery time as often as the grauntour shall come to his manour of S. or as often as the grauntee shall come to the house of the grauntour 14. E. 4. 4.. So if I graunt an annuitie of x. li. out of my land in Dale, and I haue no land in Dale, this graunt is not void, but my person shall be charged 9. H. 6. 53. per Newt. et Cot..

Nomom.

Pause here Anglonom. What is Cano­nologus drowsie, or entred into some dreame?

Canonolog.

I was neither drowsie, nor drea­ming, but the eies of my mind were somewhat closed and shut, as the hares be when she wat­cheth for the houndes: for if I could haue taken any aduantage of the speeches of my two com­panions, I would not haue been so long silent. But in truth our Law in the matters of conditi­on before handled, hath no other oracle but the Ciuil Law, if hereafter there happen any vari­ance, I will not conceal it from you.

Nomomath.

Let me then aske you this questi­on 3. Diuision. Codicgn. A man deuiseth to R. x. li. and if he wast or spend it, then he deuiseth vnto him x. li [Page] againe: Suppose that he do spende twentie pound, whether may he afterward demaunde 10. li. because the deuise is indefinite.

Codicgnost.

The deuise is not indefinite: 1. Rursus, or the word (a­gaine) signi­fieth once a­gaine by the Ciuill Law. for this word (againe) signifieth as much as once againe, according to the rule of our Law: Rursus verificari potest in vna vice l. fidei com­miss. §. si quis ff. de leg. 3.: Otherwise it might be that the executor should be char­ged to the full value of all the goodes of the Testatour: For if the deuisee were an Acola­stus, though the executor were by the execu­torship a Craesus, yet all would not serue.

Anglonomoph.

Your reason is good, but yet I would not be peremptorie in this matter, for it is not in our Law so cleere: For two Iudges were opposed against other two in the like case. There is a Prouiso in a Lease, that 2. How farre forth a word of restraint is to be exten­ded at the common Law. neither the lessee nor his assignes, shall not alien to any without the assent of the lessour, but onely to the wife, or the children of the lessor, and the lessee alieneth to one of the sonnes of the lessour: It was left ambiguous, whether the restraint were now determined Mar. 152. Dy..

Nomomath.

Let this be the case. I am bound to paie you twentie pound, if your ship come 4. Diuision. from Russia, and after the ensealing and deli­uerie of the bond, we make this condition, that the twentie pound which I did before owe vnto you vpon the aforesaid condition, I shall now owe vnto you absolutelie and with­out [Page 65] condition, whether in this case is the a­greement of any force to defeat the condi­tion.

Codicgn.

By our Law it is of force to ouer­throw 1. An agree­ment by word may defeat a condition in writing at the ciuill Law. the condition: for it is a renewing of the bond (as we tearme it) and so the later bond shall preiudice, and swallow vp the for­mer ff. de nous. et C. eo. ti..

Anglonomoph.

Our Law holdeth the con­trarie, 2. The com­mon Law is quite contra­rie to the a­foresaid asser­tion of the Ci­uill Law. and the reason is this, because it is an in­conuenience in reason, that an especialtie sea­led and solempnlie deliuered, should be auoy­ded by the bare agreement of the parties, which is but a meere matter in facto 1. H. 7. 14. Dones case per Dauers.. Yet in some ca­ses it is not inconuenient, that an obligation should be auoided by a matter in fasto where there is a strong and peremptorie operation in Law. As if a man be bound to a feme sole, and afterward he marieth her: Or if a man be bound to a villaine, and after he purcha­seth the manour to which the villeine is regar­dant, the mariage & the purchase may be plea­ded in auoidance of the especialtie. So in an auoydance of a statute merchant it is a good plea to saie that part of the land is purchased by the reconusee. So in a writ of Annuitie, it is a good plea to saie, that he hath paied it in a foreine countie. So if a man by deede graunt a rent, if the grauntee surrender the rent with the especialtie, this is a good auoy­dance [Page] of the especialtie 1. H. 7. Dones case per Keble.. But where a man was bound to paie xx. nobles at a certaine day, and if he failed, that then he would loose x. li. paiable at the same day: an action of Dette was brought for the x. pound, and it was al­lowed 26. E. 3. 71.: for here there were two seuerall bandes, one of them consequent vppon the other, but not abolishing the other. And if a defeasance vpon a statute marchant be, that the payment of the money should be made at Bristowe, and the conusee receiued it at an o­ther place, this is a good discharge of the sta­tute, for now the Law hath discharged it 46. E. 3. 4.. But one matter of recorde may be auoided by an other: Therefore the case was 20. E. 3. in a writ of Accompt the defendant said that the plaintife by a deede, which he shewed forth did graunt, that if the defendant did make a reconusance vpon statute marchant such a daie at Canterburie to the plaintife, that the writ of accompt should be held as voide: This was admitted by the Court to be a good agree­ment to auoide the writ of annuitie, as soone as the statute is deliuered to the plaintife 20. E. 3. Ac­compt 79..

Nomomath.

I would know Codicgn. what your Law doth determine of impossible conditi­ons, whether it doth vtterlie reiect them or what force and effect it assigneth vnto them.

Codicgn.

Impossibilitie, our Law maketh 1. Three sortes of impossibili­ties at the Ci­uill Law. three-fold: iuris, facti, et naturae. Iuris, as when [Page 66] there is a repugnancie in the condition, so that the Law doth wholie frustrate, and disanull the condition, or els it is directlie contrarie to the Law: As if a man should contract with a 2. What im­possibilitas iu­ru is at the Ciuill Law. woman si prolem euitauerit, or si adulteram se praestiterit, the one of these being against the Law of nature, the other against the Law of God, both of them are by our Law made voide C. fi. de condi. appo.. And indeed there is a repugnancie betwixt the contract and the condition, mari­age being a thing instituted and ordeined for the procreation of children, and the auoyding of fornication. Impossibilitas facti, is when 3. What im­possibilitas facti is at the Ciuill Law. there is great difficultie in the thing that is to be done, and it is not possible to bee easilie done, howbeit it is not absolutelie impossible to be done, this impossibilitie of the condition doth frustrate the act precedent: As if I say that Stichus my villeine shall be free, if he will giue a thousand pound for his freedome, this though it be not impossible, yet it is verie diffi­cult for a villein to performe, & because of the difficultie, the Law will imagine that I did but trifle by this forme of enfranchisement, and so Stichus shall gaine nothing by it L. cum hae­re. §. 1. ff. de sta. li.. So it is if a man being at Yorke bee bound to paie to an other at London x. pound before sunne-set, this though it be not impossible in it selfe, because a Pegasus or poast-horse may help the matter, yet because it can not with any faci­litie [Page] be pefourmed within so short time, our Law holdeth the condition to be voide Insti. de verb. obli. §. loca.. Im­possible by nature that is said to be, which is 4. Impossibili­tas naturae by the Ciuil Law. repugnant to naturall reason, and contrarie to the course of nature. As if I giue a horse to one vppon condition that he shall touch hea­uen with one of his fingers: or that he shall extinguish fire with oyle: or that he shall build a village in the cloudes Ioan. ad reg. Nemo. li. be reg. iur..

Nomomath.

These differences haue been well opened by Codicgnostes. Now I will re­quest you Anglonomoph. to explane and illu­strate them by cases.

Anglonomoph.

I will particularlie speake of 5. Which be conditions a­gainst Law by the censure of the common Law. them all: And first of Conditions against Law. If estates in land be made vppon conditions contrarie to Law, the estates be good, and the conditions voide: But then the estates must not begin, neither take effect by force of the condition, neither depende vpon such con­ditions, as to the existence of them. But if a man seised of land doe enfeoffe a straunger vppon condition, that if the feoffour doe kill I. S. one of the Queenes subiectes, it shall be lawfull for him to reenter, the estate is good, and the condition voide 4. H. 7. 4. 2. H. 4. 9.. So it is if one en­feoffe an other vpon condition, that if the feoffour doe burne the houses of I. S. it shall bee lawfull for him to reenter Perk. Condic. 139.: for such conditions are impossible to bee good by [Page 67] Law. But if a lease for life be made, or a lease for yeares of land vpon condition, that if the lessee kill I. S. within such a day that then he shall haue and hold the land to him and to his heyres foreuer, notwithstanding that the lessee do kill I. S. within the day, yet his estate is not enlarged, because the condition was a­gainst law & the estate should haue beene en­larged by the performance of the condition, but notwithstanding such condition, yet the lease is good, because that did not beginne by the condition. But if an obligation be endor­sed with a condition directly contrarie to law, both the obligation, & the condition be void 8. E. 4. 13. 2. E. 4. 3.. And if a man be bound that he shall keepe the obligee without damages, and doe not shew wherein such condition is voide, because hee may suffer damages for committing treason, murder, or other felonie which thinges are a­gainst law, and it is also against law, to saue him without damages for such thinges, so that the cōdition is void, but the obligation is not void, because such things are not expressely rehear­sed within the condition, so that the condition is not directly contrarie to law 9. H. 4. Conditions 6.. And conditi­ons which are repugnant in themselues are voide in law: as if a feoffement or gift in tayle be made, that the feoffee or donee may not take the profits: or vpon condition, that they shall make no waste: or vpon condition that [Page] the wife of the feoffee &c. shal not be endow­ed, or if a lease for life be made vpon condition that the lessee shall doe no fealtie, these estates be good, and the conditions voide: or if an an­nuitie be granted, prouiso that it shal not charge the person of the grauntor, the graunt is good the condition is voide 21. H. 30. 20. E. 4. 8.. But if a man seised of land in fee lease the said land for yeares by in­denture rendring rent, prouiso that the lessor shall not distrein for the rent, this is a good pro­uiso because the lessor may haue an action of dette 5. H. 7. 7.. but land or rent may be giuen to a man in taile so that he may alien to the profits of his issue, and this is a good condition: for it is a­greeable to law and the donor may as wel giue conditionally as simpliciter in the taile 46. E. 3. 4. G. garrantie 18.. And 7. H. 6. it was held by all the Iustices in the esche­quer chamber beside Iune, that if a man make a feoffement with warrantie, prouiso that the feoffee shall not vouch him and his heires, and that if he doe, the warrantie shall be voide, this is a good prouiso. But if the prouiso had beene that he should neyther vouche nor rebutte, the prouiso had beene void: for that had cut off all the force of the warrantie 7. H. 6. 44.. And if two grant custodiam parci de A. to I. capiendo feoda quae B. nuper parcarius cepit, prouiso quòd scriptum non extendat ad onerandum vn des grauntors, this prouiso was taken to be void, because it restrey­neth all the effect of the graunt in regarde of [Page 68] him, and if land bee giuen in taile the remain­der in fee, vpon condition that if the donee, or his heires do alien in fee, that the donor or his heires may enter, the opinion of the court was that this was a good condition: for a man may make a condition in the negatiue of any thing which is prohibited by the law, as if he make a feoffement, prouiso that the feoffee shall not not committe felonie, or that hee shall ali­en within age, or in mortmayne: and a man may enfeoffe A. and his wife vpon condi­tion, that they shall enfeoffe none other, for that were a discontinuance: otherwise it is that they shall not leuie a fine, for that is contra­rie to their estate 10. H. 7. 8.. So if a man make two ex­ecutors, prouiso that the one of them shall not administer, this is a void prouiso, because it re­strayneth all the authoritie giuen in the premi­ses as to him, and the intent which agreeth not with lawe is to no purpose 19. H. 8. 4. Dy. p Brud. & Englef.. And it hath beene agreede, that if a man doe limitte an vse in taile with a prouiso, that if cesty que vse doe such an acte, his estate shall cease du­ring his naturall life, that this prouiso is repug­nant, and against lawe, for the estate can not be determined in part. And Iustice Walm­sley sayd, that when an estate is giuen to one, it may bee defeated wholly by condition or limitation, but it cannot bee determined in parte to one, and giuen in parte to another: [Page] for that is repugnant to the rules of law, as if a man make a lease for life vpon condition that if the lessee pay not twentie pound, that a no­ther shal haue part of the land, this future limi­tation 6 What con­ditions impo­ssible in fact are at the common law. is voide 41. Eliza. Corbets case 86. b. Com̄.. And as to conditions impossi­ble in facte, such conditions if they go to the defeasans of an estate, the estate notwithstan­ding remaineth good: but estates cannot bee enlarged by such a condition impossible: and if an obligation bee endorsed with a condition impossible, the obligation is good, and the con­dition is voide. Therefore if a man seised of land doe enfeoffe a straunger vpon condition that if the feoffor go on foote from London to Stamford in a day, that then it shall bee lawfull for him and his heires to reenter, the condition is voide, quia impossibile, the estate good 14. H. 8. 32.: but if A. bee bound to B. that C. shall appeare in the common place Octab. Trin. in an action of debt brought by the said B. against C. retour­nable at the same day, and C. appeareth the same day, and his appearance is not recorded, now the obligation is forfeited. But if in this case C. had dyed before the day of the returne the obligation had beene saued, because the condition became impossible by the acte of God 9. E. 4. 25. 15. H. 7. 2. 38. H. 6. 19..

Nomomath

Now I pray you shew vnto me 6. Diuision. whether conditions are to bee expounded strictly and according to the rigorous sence of [Page 69] the wordes are according to equitie and the exigence of the case, so that the circumstances of a mans speech or actions, shal haue the regi­ment of conditions.

Codicgn.

Conditions are in our lawe taken 1. Conditions in the ciuill law are taken according to equitie. according to equitie. For if I graunt to one an annuitie of ten pound yearely, quamdiu res meas gesserit, the law maketh this sence of these wordes that he shall haue ten pound yearely, si res meas gesserit together with a limitation l. pater §. fi. ff. de condi. & demon.. So if I buy of one the fishes which are taken by him, though he haue not alreadie taken any fi­shes, yet the wordes doe imply a condition, that that the buyer shall haue them if any bee taken. So if I say, Acceptis centum solidis a Titio instituo eum haeredem, it is not meant that in re­gard of fiue pounde receiued of Titius I doe make him my heire or executor, but the words are conditionally meant: if the testator doe re­ceiue 5. li. of Titius &c l. a testatore ff. de condi. & demon.. So if I deuise to one xx. li. pro docendo talem discipulum, this ( pro) doth signifie a condition, because by common vsage prius docendus est discipulus quàm soluendū salarium magistro l. nec semel. ff. qu. di. le. ce.. So if I doe contract with a woman in this sort, I promise vnto you A. that you shal be my wife donec terra ponatur super o­culos meos, these words are not generally to bee vnderstood, for so the partie may lay earth vp­on his eyes, and slip the collar and breake pro­mise: but they must be vnderstood according [Page] to common intendement, that she shall be his wife vntill his carkasse bee couered with earth, that is, vntill he be buried, so it is, if he should haue said, Donec oculi, & os mihi claudantur c. ex literis. 1. de spon..

Angl.

Our law many times taketh the words 2 The com­mō law ta­keth conditi­ons many times strictly. of a condition strictly to preserue an estate. A lease was made to one vpon conditiō, that the lessee shal not alien to A. the lessee alieneth to B. who alieneth to A. the cōditiō is not brokē: for a condition which goeth to defeat an estate must be taken strictly 31. H. 8. 45. Dy.. And 28. H. 8. the case was thus: A lease for yeares was made by in­denture, the lessee did couenant and grant, that if he his executors or assignes did alien, that it shold be lawful to the lessor to reenter: after he made his wife his executrix and dyed, the wo­man tooke an other husband which aliened. The first question was whether the wordes of the couenant abouesaid did make a cōditi­on. And if it were a condition, the 2. question was, whether there were any breach of condi­tion in the case. Some held that there was no breach of condition, because the husband was possessed of the tearme by acte of law, & is not an assignee no more then a tenant by the curte­sie is, or the land of a villaine. But Browne and Shelley held that the husband was an assignee in law, and that the land was subiect to the cō ­dition into whose hands soeuer it did come 28. H. 8. 6. Dy.. But lately in Ridgeleys case the condition was [Page 70] extēded by equity for the safegard of the party. The case was thus: A man was bound to ano­ther in a c. l. that he shold discharge the obligee & saue him harmeles of all suits & incumbran­ces against I. S. and after the said I. S. sued the obligee, & proceeded vnto iudgement, where­fore the obligee brought an action of det vpon the obligation, and the defendant pleaded non damnificatus est. And Beamond Sergeant did maintayne the plea in his argument, because that hee was not damnified in the eye of law vntill the goodes or the lande, or the person of the plaintife were actually charged. For before that time he was onely chargeable, but not charged. Sergeant Harris argued to the cō ­trarie: for he said that he was chargeable to the execution of the partie, & so not saued harme­lesse, & two sorts of damages were held by Iu­stice Walmesley the one executorie, the other ex­ecuted executorie, which a man may in future time sustayne: Executed, as if the land or the person shoulde bee in present execution. And if the disseisee make a release to the dis­seisor, and a straunger cancelleth the deede of release, the disseisor may haue an action of trespasse against him: and yet the disseisor doth continue possession, and is not as yet actually damnified. And Iustices saide, that the land of the party was in some sort charged, for none [Page] in such case would buy the land of the partie, but onely vnder the value, because of the iudgement executorie 33. Eliz. Ridgeleys c.. But wee haue a rule in our law, that when a condition is to bee per­formed to a straunger it is to bee performed most strictly: and if the condition bee perfor­med at an other place, this is not sufficient 36. H. 6. 8.. And 21. H. 6. it is said that if a man be bound, that he or his feoffees of the mannor of W. shal graunt to the obligee 20. s. rent for tearme of life, and he hath three feoffees, two of the feof­fees cannot graunt this rent 21. H. 6. 19. But 7. E. 4. it was affirmed in the kings bench, that if a man were bound to make one a sure sufficient and law­full estate in certaine land by the aduise of I. S. if he make an estate according to the aduise of I. S. be it it sufficient or not, or lawfull or not, he is excused of his bond: and a like matter was in the common place the same terme, and they were of the same opinion 7. E. 4. 13..

Nomomath.

I wold gladly be satisfied in this, when a man maketh one his heire or executor, 7 Diuision. and if hee refuse to performe any thing that is comprised in his will, then he willeth that I. S. shall bee his heire or executor, and shall per­forme his will, and shal seise his goods and en­ter into his lands post haereditatē aditam, though the heyre or executor haue intermedled with the will, and haue performed some thinges [Page 71] according to the intent of it: Now if the Te­statour die, and the heire or executor haue per­fourmed some thinges of the will, but refuseth to perfourme other some, and hath seised the goodes, and entered into the landes of the partie deceased: Whether may I. S. enter vpon him for the condition broken and defeat his whole interest in the landes or goodes: or shall he still reteine part of the landes, and goodes, because he hath perfourmed part of the will?

Codicgn.

I. S. or the substitute of the Te­statour 1. There may be a substituti­on of one heire after an other, or of one exe­cutor after an other at the Ciuill Law. is now by the will and breach of the the condition become directly the heire or ex­ecutor to the Testatour: And all the authoritie or interest of the fomer heire or executor is vt­terlie determined, frustrated, and defeated Insti. de vul­ga. substi. §. quo casu.: 2 The heire at the ciuill Law must succedere in vniuersum ius defuncti. for the authoritie or interest of the heire or exe­cutor by our Law may not be apporcioned, but he must succedere in vniuersum ius defuncti ff. de verb. signif. l. nihil aliud est haere­ditas, et l. bo­nor. eo. tit.. And there is an other substitution in our Law, which we call a reciprocall substitution, and it is thus: The Testatour saith, I doe make S. and T. my sonnes within age my heires, and I sub­stitute the one of them to the other, that is, if the one die, the other shall haue all, and the mother nothing at all Gazalup. verb. substitu­tio brem lo­qua..

Anglonomoph.

I haue noted in your wordes Codign. two thinges, which haue no small co­herence and agreement with matters of our Law. First in that by will according to your [Page] Law, an entrie may be limitted to a straunger. 2. In that ye hold that he which defeateth the estate of him that breaketh the condition shall defeat his whole estate, and shal entirely claime the possession. Which two assertions I shall seuerally prooue by cases of Law beginning with the first: A man seised in fee of landes de­uisable, 3. By Will ac­cording to the common Law an entrie may be limitted to a stranger. did deuise them to one for terme of his life, and that he should be a Chapplein, and that he should chaunt for his soule all his life time, and that after his decease the tene­ments should remaine to the Cominaltie of a certaine village, to finde a chappleine perpe­tuall for the same tenements, and he died, and the deuisee entred, and held the landes sixe yeares and was no chappleine, and the heire of the deuisour outed him, and he brought an Assise: And it seemed to the Court that the limitation that he should be a chappleine was no condition, and that the heire could not enter, for then the remainder should be de­feated, which may not be, because by the in­tent a perpetuall chappleine ought to found 29. Ass. pla. 17.: Whereby it appeareth that they in the remain­der were to take aduantage in this case of the breach of the thing that was to be done, and not the heire. So in Fitz Iames his case, the clause of entrie was limitted to him in the re­mainder for breach of the condition by the par­ticular tenant: for it was helde that the limita­tion [Page 72] might determine the estate, and that being determined, he in the remainder might en­ter 13. et 14. Elizab. Com̄ 403. Newyses case.. Also 34. E. 3. the case was, that a man had issue a sonne and a daughter, and deuised land deuisable to one for life, vpon condition, that if the sonne should disturbe the tenant for life, that the land should remaine to the daugh­ter, and the heires of her bodie, the father di­eth, the sonne disturbeth the tenant for life, who dieth, the daughter brought a Formedon, and it was allowed 34. E. 3. Formedon pla. vlt.: But yet the aduantage of 4. The aduan­tage of entrie limitted to a stranger is in the late reports doubted of. entrie by vertue of the limitation is not in other late reportes so cleare, but hath been greatlie doubted of: Stubes being Cestuy que vse deui­sed to his wife certaine land during her life, ita quòd non faceret vastum, the remainder to his yonger sonne in taile, and died, after the Sta­tute of 27. of ioyning the possession to the vse is made, the woman dieth, the question was who should enter for the condition broken, the heire, the feoffees, or he in the remain­der 3. Mar. 117. Dy.. And an other case was equally doubt­full, Wilford was bound in an Obligation without daie of payment limitted, and de­uised his land to his executors vppon con­dition, that if they did not paie the said summe according to the obligation, that the deuise should be voide, and that then A. should haue the land to him and to his heires vp­pon condition that hee paied the money, [Page] Wilford died, A. died, the executors are reque­sted to pay the money, and they would not pay it, the question of the booke left vndeci­ded, is whether the heire of A. may enter into the land, and paie the money 3. Mar. 128. Dy.. In like maner land in Gauelkind was deuised to the eldest sonne vpon condition, that he should paie 100. li. to the wife of the deuisour, he fayled of the payment, it was questioned by Manwood, whe­ther the yonger sonne might enter into the moitie, as by an implied limitation 15. Eliz. 317. Dy.. But touching such entries by force of some speci­all limitation or condition, Mast. Frowike gi­ueth a good rule 21. H. 7. that an estate of inhe­ritance can not cease by vertue of a condition broken onelie, but there ought to be also an entrie: But otherwise it is of a particular estate, and the reason is, because such an estate may be determined by word as by surrender: and by the same reason it may cease by the wordes of the condition 21. H. 7. 12. per Frowike.. Now that the 5. That the entrie for the condition bro­ken, defeateth the whole es­tate. whole estate of the feoffee or donee is defea­ted by the breach of the condition, and the en­trie of the partie, may be prooued by diuerse authorities in our Law, and that there can be no fraction of the condition, 14. Elizab. all the Iustices agreed: And so was iudgement giuen in Winters case, that by the graunt of the reuer­sion of part of the landes, with which a con­dition runneth, the condition is wholie con­founded, [Page 73] because it is a thing penall and entire, and may not be apportioned nor diuided 14. Elizab. 308. Dy.. And 33. of Henrie the eight, according to Mast. Brookes report, it was helde for Law, that if a man giue land in taile, or lease it for life, rendring rent, with a condition for de­fault of payment to reenter: now if he lease part of the land to the donour, or lessour, or if the donour or lessour enter into part of the land, he cannot enter for rent behind after, but the condition is wholie suspen­ded, because a condition cannot be appor­tioned or diuided. Therefore some scruple may with good reason be made of the case 16. Elizab. in my Lord Dyers reportes, A man leased land for yeares, vppon condition that the lessee should not alien the land to anie person without the assent of the lessour, nor any part of the land, the lessour giueth licence to alien part, and the lessee alieneth the resi­due without licence, it was adiudged that the lessour may enter notwithstanding the dis­pensation of the condition ex parte 16. Elizab. 334. Dy.. How­soeuer 5. Edw. 6. be to the same purpose, that a man enfeoffed two vppon condition to make backe a lease for life to the feoffour, the re­mainder in fee to a straunger: the one of them onelie maketh estate accordingly. And by the opinion of manie, this is good for a moitie by [Page] the dispensation of the partie, who might take aduantage of the condition by his accep­tance of estate 5. Ed. 6. 69. Dy.. For 23. Elizab. the case was such: A man was bound in an hundred pound to giue to the obligee the moitie of all the fishes taken by his water-mille, he tooke twentie one fishes, and gaue tenne to the ob­ligee, and an action of Dette was brought vpon the obligation, and the plaintife reco­uered, because he did not giue vnto him the moitie of the other fishe. This was adiudged in the Kinges Bench. But now suppose that the condition doth extende onelie to some particular estates, whether shall the other estates depending bee totallie defeated by the breach of the condition? And surelie our Law is, that the breach of the condi­tion shall defeat no estate, but onelie that whereunto it is annexed. For the case was 3. Mar. that a man deuised land to his wife vppon condition, that shee should bring vp his eldest sonne, the remainder to the se­cond sonne: The elder sonne entreth for the condition broken, hee shall onelie defeate the estate of the wife. And if the tenant for life, and hee in the remainder ioine in a feoffement vppon condition, that if such an acte be not done, that the tenant for life shall reenter, this doth not defeate the en­tire [Page 74] estate of the feoffee 3. Mar. 125. Dy.. And if a gift of land be made in taile, the remainder to the right heires of the donee, vppon condition that if hee alien in fee, then the donour may enter, if the donour enter for the condition broken, the estate taile is onelie defeated 11. H. 7. 6. 13. H. 7. 23. 10. H. 7. 11.. So if a man lease land for life by deede in­dented, the remainder ouer in fee rendring a rent with clause of reentrie for non pay­ment by the tenant for life, and to reteigne the land during his life: If hee enter for the condition broken, he shall haue the land onlie during the life of the tenant for life 29. Ass. pla. 17..

Nomomath.

I giue yee great thankes for the vnwearied continuance of your paines, and though I bee in questioning at a non­plus: yet I see your inuention and memo­rie are not grauelled nor dryed vp, parched as it were with summers drought. I praie you therefore let vs still conuerse together vnder one roofe ( within my walles there is no Sinon, no Dauus, no Momus, but chast learning cabboned with frugall contentment,) that if God doe still vouchsafe the Moone-diall of this [Page] darksome life, with the reflexe of his intel­lectuall illumined influence, this triple-whee­led clocke may still be kept in motion, by the diuine agilitie of his Law­fauouring spirit.

A TABLE OF THE Sections or Diuisions of the principall pointes, matters, and que­stions, which are handled in euerie Dialogue.
The Diuisions and principall contents of the first Dialogue of Prohibitions and Consultations.

The 1. Diuision. 1. THe originall of tithes is inquired of. 2. The councell of Constance is said to haue condemned Wicklife for holding tithes to bee pure almes.

The 2. Diuision. 1 The originall of tithes is demonstrated to be by the law of God. 2. God his deputies for the re­ceipt of tithes are set downe. 3. The heathens which knew not God had great regard of of paying tithes. 4. Lucullus is specially commended for the paying of tithes. 5. Camillus is likewise commended for his diligence in procuring tenth to be payed. 6. The Romanes carefull in paying first fruits.

3. Diuision. 1 Whether Parsons ought to haue no more li­uing then tithes. 2. It is denyed by the Canonist that they ought to haue no more liuing.

4. Diuision. 1 A lay man by the Canon-law may prescribe in paying a speciall portion in lieu of tithes. 2. The ciuill lawe agreeth thereunto. 3. By the com­mon lawe a man may prescribe in paying a tempo­rall recompence in lieu of tithe.

5. Diuision. 1 Two sortes of tithes are set downe by the Canonist: some feudall, some ecclesiasticall. 2. The Church onely holdeth conusaunce of the right of tithes by the Cannon lawe. 3. The king of Fraunce his edict touching tithes is sette downe. 4 That by the Canon law where the question of tithes is facti, and not iuris, the exa­mination thereof may belong to a laye iudge. 5. Where the suite of tithes is betwixt clergie men though it bee meerely possessorie, yet it be longeth to an ecclesiasticall iudge by the Canon law.

6. Diuision. 1 The nature of feudall tithes is opened by the Canonist. 2 Charles Martle is accused of Church-pillage. 3. The Canonist telleth a strange tale of Charles Martle. 4. It is thought of No­momathes to bee but a fable. 5. One of the an­cient statutes of England is compared with the a­foresaid edict of the king of Fraunce. 6. The common law agreeth with the Canon in the attri­buting [Page] of the decision of the right of tithes to the spirituall iudge. 7. Where one parson may sue a spoliation against the other in the spirituall court. 8. The executors may bee sued in the spi­rituall court. 9. Of what trees tithes may bee de­maunded by the statute of 45. E. 3. 10. That the rent payed for tithes vpon a lease for yeares is a laye chattell.

7. Diuision. 1 A precept issueth with a monition vnder payne of excommunication for the due satisfaction of tithes.

8. Diuision. 8 The degrees which the Canon law obserueth in punishing offences in the clergie. 2. Two sorts of excommunication sette downe by the Canonist. 3 The compulsorie statutes of England for pay­ment of tithes are mentioned by the barrister 4. Impropriate tithes at the common law are compa­red with feudall tithes.

9. Diuision. 1 The Ordinarie ex officio may cite men to pay tythes.

10. Diuision. 1 Two sortes of heretickes: formatus, and suspec­tus [Page] 2. In what cause the wife and children of he­retickes shall enioy their landes. 3. Heretickes by the ciuill law not punishable by fire. 4. The Ca­nonist poasteth the punishment of heretickes to the common law. 5. The professor of common law bandeth backe againe the punishment of heretikes to the Canon law.

11. Diuision. 1 What thinges may bee tearmed Church-land by the ciuill law. 2. Of Churchyards the spirituall Court shall hold iurisdiction by the common lawe. 3. The right of gleabe lande is triable by the com­mon law. 4. Lands deuised not subiect to the iu­risdiction of the ecclesiasticall Court 5. Suites for chattels real must be in the spirituall court.

12. Diuision. 1 That ius patronatus by the Canon law is deter­minable in the ecclesiasticall court: and that it pas­seth by the word ( ecclesia.) 2. The diuers significa­tions of the word ecclesia at the common lawe. 3. The interest of the Parson, patron, and Ordinarie, in the Church is shewed. 4. What thinges doe make a patron by the Canon law. 5. Ius patronatus is one of the proper obiects of the common law. 6. That an aduowson lieth in tenure.

13. Diuision. 1 Punishment pro laesione fidei concerning a tem­porall acte, is not to be adiudged in the ecclesiastical [Page] Court. 2. Periurie in an ecclesiasticall court puni­shable in an eclesiasticall court. 3. Lindwoods au­thoritie touching punishment pro laesione fidei in tem­porall matters at the ecclesiasticall law is not admit­ted. 4 The barrister disproueth the generall cita­tions of Bishoppes ad Sacramenta praestanda by the common lawe. 5. Nomomath encountreth him in this point. 6. The ciuill law agreeth with the Ca­non in matter of oathes.

The Diuisions and principall contents of the second Dialogue of Actions vpon the Case.

1. Diuision. 1. THe reason is shewed wherefore actio iniuri­arum hath so generall a name at the Ciuill law. 2. The barrister compareth an acti­on vpon the case at the common law to D. Stephens his water.

2. Diuision. 1 An action vpon the case lieth against the kee­per of a common Inne if goods bee embeasiled. 2. If a straunger lodge with me by my consent, and do embeasil goods, the Innekeeper shall not bee char­ged. 3. If my seruant embeasill my goodes, the In­keeper shall not be charged. 4. By the ciuill lawe the Innekeeper is to bee charged with action if his seruants steale goods. 5. If through the default of the master of a shippe goods be stolne, the owner of the ship is to make recompence.

3. Diuision. 1 By the ciuill law it is not necessarie, that there be mutuall consideration in contractes. 2. Three sorts of contractes by the ciuill law. 3. What is a proper contract by the ciuill law. 4. What an improper contract is by the ciuill law. 5. What a most improper contract is by the ciuill law. 6. The common-law admitteth no contracts, but such as be proper.

4. Diuision. 1 That no fare ought to bee payed for them that die in a ship, if the master of the ship did assume to bring them safe to shoare. 2. If a child be borne in seafaring, nothing is to bee payed for that childe. 3. The barrister putteth a case of carying a horse safe and sound ouer Humber. 4. The Cannon law agreeth with the ciuill in cases of improper con­tractes.

5. Diuision. 1 That by the common law want of skill is to be punished by an action vpon the case, if there be an assumpsit eyther implicatiue or expressed. 2. That by the ciuill law want of skill onely is puni­shable. 3. By the Canon law crassa & supina igno­rantia non excusat.

6. Diuision. 1 Circumuention dolo malo punishable by the [Page] ciuill law. 2. A difference at the ciuill law betwixt dolus malus and dolus bonus. 3. The same difference the Canon law obserueth. 4. Dolus malus punish­able at the common law by an action vpon the case, or a writ of deceit.

7. Diuision. 1 Contemptuous speeches are not punishable by the ciuill law. 2. Opprobrious speeches which proceede of malice are punished. 3 It is obiected that the Grecians did tollerate sarcasmicall speeches against wicked men. 4. Aristophanes is condem­ned for his bitter detractions. 5. The deuisors & publishers of libels punishable by the ciuill law. 6. The cannon law is seuere against such. 7. Re­prochfull speeches punishable at the common lawe by an action vpon the case.

The Diuisions and principall contents of the third Dialogue of Debtes.

1 DEbt may grow by writing, or especialtie. 2. An obligation may be by deed inden­ted at the ciuill law. 3. What an instru­mentum garrantigiae, is at the ciuill law. 4. Three sorts of bonds by the ciuill law. 5. Debt may grow by way of contract. 6. The canon law agreeth with the ciuill in matters of bonds, & debts. 7. Debts may grow by contract by the common law. 8. An action of debt lyeth at the common lawe for the loane of money. 9. An action of debt lyeth at the [Page] common law for a meere duetie. 10. An obliga­tion made after a contract dissolueth the contract by the common law. 11. A man may bee bound by deed indented by the common law. 12. A sta­tute-bond is resembled to an instrument of warran­tie at the ciuill law. 13. A deed razed is not good at the common law. 14 The common law agree­eth in substance with the ciuill law in the three sortes of bondes. 15. The common law dissenteth from the ciuil law in not making the redeliuerie of a bond an acquittance.

2. Diuision. 1 That by the ciuill law the executor succeedeth in vniuersum ius defuncti. 2. Insinuation of a will necessarie by the ciuill law. 3. By the ciuill law the executor or administrator ought to make an inuen­torie of the goods of the partie deceased. 4. The power of the executor dependeth wholly vpon the will of the testator by the Common lawe. 5. According to the common lawe a deuise is of no force vntill the death of the deuisor. 6. The com­mon law agreeth with the ciuil in the insinuation of willes. 7. That an action of debt wil lie against the ordinarie. 8. The common law agreeth with the ciuill in administring goodes comprised in the Inuentorie according to the testament. 9. What may properly bee said to bee assets in the hands of the executors.

3. Diuision. 1 The rigorous lawe of the Romanes in their [Page] execution for det. 2. The execution of the Ro­maines greatly to bee reprooued, because it did depriue men of buriall. 3. That the rigorous Law of execution for dette was afterward abrogated by the Romanes. 4. That by the Ciuill Law execu­tion lieth for dette vpon the goods of the partie, and how far forth the word (goodes) extendeth. 5. A fower-fold execution for dette at the common Law. 6. The execution of goodes by Fieri facias is ope­ned. 7. Execution by Elegit is opened. 8. Exe­cution vpon statute merchant is opened. 9. Exe­cution by Capias ad satisfaciendum is shewed.

The diuisions and principall contents of the fourth Dialogue, of Accomptes.

1. Diuision. 1. IN what case a man is accomptable at the Ciuill Law per actionem aestimatoriam. 2. The diffe­rence of a generall and a speciall Bailie at the common Law. 3. What things belong to the charge of the Bailie of a Mannour. 4 That by the common Law if the Bailie be preiudicial to his Ma­ster, he is to make recompence.

2. Diuision. 1 By the Ciuill Law the Bailie is discharged, if the Master intermeddle. 2. That by the cōmon law as well as by the Ciuill, he that is put in speciall trust to procure the profit of an other, is accomptable.

3. Diuision. 1 Accompt ought to be made to the Executors by the Ciuill Law. 2. The same is warranted by the common Law. 3. That a writ of Accompt by the Canon Law, will not lie against executors, vn­lesse it be in some speciall cases.

4. Diuision. 1 What authoritie may be assigned to a bailie by the ciuill Law. 2. The difference of an authoritie, a charge, and commaunde by the ciuill Law. 3. The Canon Law is against the difference: So like­wise is the common Law.

5. Diuision. 1 The difference betwixt a Bailie, a Sollicitor, an Attourney and a Deputie, is shewed out of the ciuill Law. 2. The difference holdeth not in the Canon Law. 3. The common Law according to the aforesaid difference more agreeth with the ciuill, then with the Canon Law. 4. That by the ciuill Law, contrary to the common law, there is no man­ner of interest in a Deputie.

6. Diuision. 1 That the Bailie or Attourney may not take halfe the land, for the purchasing or compassing of the other halfe. 2. That the like matter is forbid­den by the Canon Law. 3. The common Law agreeth with them.

7. Diuision. 1 Two sortes of Accomptants by the Ciuill Law. 2. Likewise by the Canon Law. 3. And also by the common Law.

The diuisions and principall contents of the fifth Dialogue, of Wast done in a mans ground.

1. Diuision. 1. OF what thinges Wast may be committed by the Ciuill Law. 2. Cutting of Wood in Sylua caedua by the ciuill Law is no Wast. 3. The common Law agreeth with the ciuill, that Wast may be in the decaie of an house. 4. A spe­ciall couenant will binde the partie to repaire hou­ses and walles battered downe by violence vnresista­ble, by the common Law. 5. The tenant by the common Law, may cut Trees for the reparation of houses. 6. The common Law agreeth with the Ciuill in the cutting of silua caedua. 7. The com­mon Law agreeth with the Ciuill in tollerating the lopping of Trees, which may be auaileable for their groweth.

2. Diuision. 1 That both by the Ciuill and common Law, where land is empeired by the inundation of water, this is wast.

3. Diuision. 1 That by the common Law, he that commeth to [Page] land by an other mans graunt, ought to vse it accor­ding to the graunt. 2. The digging for coale or claie in the land demised is Wast by the common Law. 3. The suffering of the ground to become rushie, or weedie, by the common Law is Wast. 4. That the Ciuill Law agreeth with the common Law, in suffering one to amend conduit-pypes in an other mans ground.

3. Diuision. 1 The punishment of Wast by the Ciuill Law. 2. The punishment of Wast by the common law.

The diuisions and principall contents of the sixth Dialogue, of Parceners.

1. Diuision. 1. TWo sortes of Parceners: Parceners by the common Law, and Parceners by Custome. 2. Who be Parceners by the common Law. 3. Who be Parceners by the Cu­stome. 4. That by the ciuill Law where 3. heires are instituted, they are not reputed as one heire. 5. That by the common Law Parceners are repu­ted as one heire, as to the discent of the land. 6. Parceners in regard of the particion are accepted as seuerall persons.

2. Diuision. 1 The Statute of 31. H. 8. giueth a writ de Par­titione facienda, as well to Iointenants, and Te­nants [Page] in common, as to parceners. 2. The three seuerall actions against Parceners, Iointenants, and Tenants in common by the Ciuill Law.

3. Diuision. 1 Diuerse kindes of Particion at the common Law. First: A particion to haue a third part, or a 4. part. 2. A particion by way of release. 3. Par­ticion by the graunt of a thing de nouo. 4. Parti­cion by way of reseruation. 5. Particion by taking the third part, or the fourth part of the profites. 6. A difference in the Ciuill Law, where a thing that hath partes cohaerentes is diuided, and where a thing that hath partes distantes.

The diuisions and principall contents of the seauenth Dialogue, of Conditions.

1. Diuision. 1. ( SI) doth not alwaie signifie a condition in the Ciuill Law. 2. Sometime it signifieth an vncertaine cause. 3. Sometime it signifieth a cer­taine cause. 4. Sometime an vncertaine euent. 5. Sometime a condition. 6. ( Si) doth signifieth an vncertaine cause at the common Law. 7. ( Si) sig­nifieth a certain cause at the common Law. 8. Like­wise an vncertaine euent by the common Law. 9. Likewise a condition.

2. Diuision. 1 The word ( Nisi,) or vnlesse, doth sometimes signifie a condition at the Ciuill Law. 2. How a modification or limitation of a graunt is made. 3. A difference betwixt a limitation, and a condition at the common Law. 4. The common Law is more ample and large-handed then the Ciuill Law in matters of limitation.

3. Diuision. 1 ( Rursus,) or the word (againe) signifieth once againe by the Ciuill Law. 2. How farre forth a word of restraint is to be extended by the common Law.

4. Diuision. 1 An agreement by word may defeat a matter in writing by the ciuill Law. 2. The common Law is quite contrarie to the aforesaid assertion of the uill Law.

5. Diuision. 1 Three sortes of impossibilities at the Ciuill Law. 2. What impossibilitas iuris is at the Ciuill Law. 3. What impossibilitas facti is at the Ciuill Law. 4. Impossibilitas naturae by the Ciuill Law. 5. Which be conditions against Law by the cen­sure of the Canon Law. 6. What conditions im­possible in fact are at the common Law.

6. Diuision. 1 Conditions by the ciuill law are taken ac­cording to equitie. 2. The common lawe taketh conditions many times strictly.

7. Diuision. 7 There may bee a substitution conditionall of one heire after another, or one executor after an o­ther at the ciuill law. 2. The heire at the ciuill law must succedere in vniuersum ius defuncti. 3. By will according to the common law an entre may be limited to a straunger. 4. The aduantage of en­try limited to a stranger, is in the late reports doubt­ed of. 5. That the entry for the condition broken defeateth the whole estate.

Errata.

Faultes. Page. Corrections.  
nations fol. 2. a. matrons. (There want these words, fol. 4. a. There bee two sorts of tithes ecclesiasticall and feudall.)
stande fol. 6. b. sue. (There want these wordes, fol. 10. a. (or Darius) linea 22.
Tertorike 17. b. Teutonike.  
harde 38. a. pore.
fate 59. b. foote.
puerpercie 60. a. puerperie.
lande 69. b. Lord.
FINIS.
THE PANDECTES OF the …

THE PANDECTES OF the law of Nations: CONTAYNING seuerall discourses of the questi­ons, points, and matters of Law, wherein the Nations of the world doe consent and accord.

Giuing great light to the vnderstanding and opening of the principall obiects, que­stions, rules, and cases of the Ciuill Law, and Common law of this Realme of England.

Compiled by WILLIAM FVLBECKE.

Opinionum commenta delet dies: Nationum iudicia confirmat.

LONDON Imprinted by Thomas Wight.

1602.

[...]

To the curteous Reader.

CVrteous Reader, when Sulpi­tius returning out of As [...]a, sai­led from Aegina to Megara, he began to cast his eye, and bend his contemplation to the regions round about him: behind him was Aegina, before him Me­gara, on the right hand Piraeus, on the left hand Co­rinth, which had bene in ancient time verie flourishing Cities, but were now ruinated, prostrated, and buried in dust: that wise Romane whose eye did alwaies ayme at some conuenient marke, and whose mind made per­fect vse of her selected obiect, when he saw these car­kasses of townes, considered his owne estate, which was far more brittle. I likewise wandring in my thoughts through the paradise of learning, amongst many de­lightfull apparitions espied foure excellent lawes: the first was the canon-law, to which for the grauity I bow­ed: the second the Ciuil, which for the wisedom I admi­red: the third the Common law, to which I did my ho­mage: the fourth the law of Nations, which I submis­siuely reuerenced, yet the hew and state of her seemed to bee much chaunged, and the iniquitie of crabbed times had set the print of her metamorphosis vppon [Page] her: Her other three sisters did condole with her, and deplore the iniurie of the times which did cause her crasines. I perceiuing this, waied mine owne frailtie, which in one and this very spring tide haue in my selfe knowne the force of seasons, and to the glorie of God acknowledged it: I had no meanes of comfort where­with to refresh this drooping Ladie, but onely with a plaine English mantle to attire her, and recommend her vnto thee. She will report many things vnto thee of the renowmed Assyrians, the valiant Persians, the spirit-guided Hebrewes, the prudent Grecians, the admirable Romanes, the noble harted Carthagini­ans, the victorious Macedonians, the deliberatiue Turkes, the politike Italians, the chiualrous French, the most puissant & inuictis Romano Marte Britan­nis, Tibul. 4. Elegi. 1. she will manifest vnto thee their iudgements, their censures, their aduises, and practises:

Et quae mox imitere scias: nec desinet vnquam
Tecum Graia loqui, tecum Romana vetustas:
Antiquos audito duces: assuesse futurae
Militiae: Latium retrò te confer in aeuum.
Claudi. de quart. Consu­lat. Honor.
.

I commit this booke gentle reader to thy curtesie: it is the first to my knowledge that hath bin written of this matter: if my paines be not correspondent to the dignitie of the subiect, the pardon lyeth in the benefi­cence of thy curtesie: Euerie one cannot be a Scipio, or a Laelius, to ouertake euerie thing which they vnder­take: euerie one cannot say as one of them said: Sapi­entis non est dicere, non putaram. Appelles could but only describe the head and face of Venus: Achil­les [Page] killed many Troianes, could not surprise their ci­tie: and Virgill before he commeth to the death and tombe of Aeneas, fayleth, and slippeth into the de­scription of the death and tombe of a Gnat. Perfe­ction is a rare birde, which flieth from many, that with sweating and breathing follow it. Yet some handle that, which they can not gripe, and their en­deuour is not disliked. Some make a bolde attempt, and fayle of the victorie, whose audacitie is accompted a vertue: Some in not despairing of that they purpo­sed, haue been thanked for their hope. For mine owne part I craue no thankes, but good woordes, and good will, and thy fauourable acceptance (friendly Reader) which being an effectuall benefite may perfit all im­perfections. Farewell in the Lord.

March 30. Anno Domini 1602.
Thine in all kind respect WILLIAM FVLBECK.

A Table of the contents of the Chapters of this booke.

  • Chap. 1. OF the differences of Times and sea­sons by the Law of Nations. fol. 1
  • Chap. 2. That by the Law of Nations, Emperors, Kinges, and absolute Monarches, haue full power and authoritie to seise the landes and goodes of their subiectes, condemned for heinous offences. fol. 9
  • Chap. 3. That the worthines of bloude hath been principally respected of all Nations. fo. 14
  • Chap. 4. That in making Title by prescription, and continuance of time immemoriall, all Na­tions haue consented. fol. 19
  • Chap. 5. That by the consent of all Nations, con­sent principally maketh a lawfull mari­age. fol. 22
  • Chap. 6. That by the practise of all Nations De­mocracie hath been bette down, and Mo­narchie [Page] established. fol. 28
  • Chap. 7. Of the Law and Iustice of Armes, of Leagues, of Embassages, & denouncing of warre, of Truce, of Safeconduct, Captiues, Hostages, Stratagems, and Conquestes, ac­cording to the Law of Nations. fol. 33
  • Chap. 8. That in the Lawes & Constitutions tou­ching Cities, corporations, liberties, fran­chises, and immunities, and the good go­uernment and administration of them, all Nations haue agreed. fol. 52
  • Chap. 9. That the distinguishing of demesnes, and the difference of the degrees and callings of men, is according to the Law of Nati­ons. fol. 60
  • Chap. 10. That in the Law of Tributes, Subsidies, and Prerogatiues roiall, all Nations haue consented. fol. 68
  • Chap. 11. That all Nations haue both secretelie, and by the course of their ouert actions [Page] acknowledged and yeelded to the Truth of the Lawes and commandements of the second Table of the Decalogue. fol. 75
  • Chap. 12. That the rules of warre and Law of Na­tions are not to be obserued, and kept with Pyrates, Rebels, Robbers, Traytors, Re­uoltes, and Vsurpers. fol. 81
  • Chap. 13. That by the Law and practise of Nati­ons, warre is not to be mainteined against Infidels onely, because they are Infidels: And that Princes in their Realmes may inflict punishment for straunge worships. fol. 85.

The first Chapter.
Of the differences of times and sea­sons by the Law of Nations.

AL Nations in put­ting difference betwixt times and seasons haue rather fol­lowed a populer and com­mon obseruation, then the precise rules and principles of Astronomy, accompting it more conuenient and requisite, that sithence all contracts and matters of entercourse doe fall within the listes and precincts of time, that there­fore the moments and measures of time should be publikely and familiarly knowne to populer conceit: In setting downe the definition of Time, they agree in the substance and matter it selfe, though in wordes and tearmes they be somewhat dissonant. Aristotle a great Philosopher amongst the Graecians defineth Time to be the measure of motion, according to prioritie and posterioritie, a [Page] short and subtill definition, but yet true & sound. Varro as great and famous amongst the Romanes defineth it to be interuallum mundi & motus, the space of the world and motion, a briefe definition and verie nimble, if it be nimbly vnderstood: for by the world he meaneth the course of time, by motion the course of thinges. Others, as the Egyptians haue defined it a dimension perceyued by the conuersion of the heauens. Plato, who of these matters had in his trauayle conference with Ara­bians, Egyptians, and Chaldeans, defineth it to be a moueable and chaungeable representation of Eternitie; Plat. in Tim. and truely and aptly doth he tearme it a chaungeable representation or image of Eter­nitie: for as Censorinus noteth, Time in regarde of Eternitie, is but a winters day. Censo. c. 4. de di. na. But though time be as much obscured in eternitie, as a small penny is amongest the riches of Craesus, yet as that was part of his riches, so time must needes be a part of Eternitie. Cicero defineth time more vulgarly, to be a part of Eternitie with a certaine difference, of a yearely, monethly, daily, and nightly distance, Cic. lib. de sin. 4. so that Plato his definition hath relation to the cause of time; Ciceroes to the persons that make vse of time. Philosophers haue left to posteritie many subtill, deepe, and learned discourses of time, but bidding their definitions and disputations fare­well, I will examine and weye the distinct partes of time with a popular ballance, and according to common sence, taking that course to be most [Page 2] sutable to my profession. The partes of time ac­cording to the generall diuision of Nations are a yeare, a moneth, a day, an howre, and a mo­ment: for the Olympiads and Lustra, as being proper to the Graecians and Romanes must be se­cluded from this Treatise, and Seculum as being a thing not vsuall in law, which now we handle must likewise be cassierd. Yet in speaking of time we may not forget to handle the circumstances of time as they be accommodated to the Law, and to the actions of men: As namely of a long time, a short time, a late time, an auncient time, a certaine time, an vncertaine time, a continuall time, a conuenient time, time past, time present, and time future. But first to speake of the yeare, Annus according to the Etymologie learnedly searched out by Varro, is nothing els but a cir­cuit: for as the little circles are called annuli, ringes; so the great circles or compasses of time are called Anni, yeares Var. lib. 5. de lingu. lat.. The yeare is a time, wherein the Sunne perfitteth his course, and that is accomplished in the space of three hundred, three scoore, and fiue dayes, and sixe howres al­most: And this hath our Law well obserued, as may appeare by these verses:

Ter centum, ter viginti, cum quinque diebus,
Sex horas, neque plus integer annus habet
18. Elizab. 345. Dyer.
.

by which accompt (if you subtract the howers and halfe dayes) the quarter of the yeare will fall out as it is in our Law set downe, to be nintie and [Page] one dayes; and the halfe yeare, a hundred eightie and two dayes, Ibidem. which was almost fully signi­fied by Ianus his image in Rome, in whose right hand was the number of three hundred, and in his left hand fiftie and fiue. Macrob. lib. 1. Stur. ca. 9. Others haue made the same difference betwixt the yeare and mo­neth which the Merchants of some Countries make betwixt the ounce and the pound, deliue­ring their conceit in this verse: ‘Vncia (que) in libra pars est, quae mensis in anno.’ And though it be a common receiued opinion, that the Romanes at the first, and a long time after the foundation of their Citie did accompt but tenne monethes for the yeare, so that Ouid quarrel­leth with Romulus his Astronomy in this maner: Ouid. lib. 1. fastor. ‘Scilicet arma magis quàm sydera Romule noras.’ Yet if the course & circumduction of their yeare be well obserued, it will appeare to haue contei­ned the full space of twelue monethes, as may appeare by Plinie Plin. lib. 2. ca. 9., Macrobius Macrob. 1. Satur. ca. 12. et lib. 1. in som. Scip. c. 6., and Plutarch Plut. in Num.. And this was likewise the yeare of other Nati­ons. The Romanes did begin their vulgar yeare at the beginning of Winter, as appeareth by Ouid: ‘Bruma noui prima est veterisquè nouissima solis.’ Which course seemeth to bee agreeable to the course of nature, because then the sunne begin­neth to returne vnto vs, and therefore wee may rightly deriue the beginning of his circuite from thence: The yeare is diuided into the Spring, Summer, Haruest, & Winter. The Romaines did [Page 3] accompt the spring that space of time which was betwixt the Calends of March & the Calends of May, Liuy. lib. 34. but the most common & currant entrance of the spring in the reputation of all the nations of the world, was when the plants or herbage of the earth began to waxe greene: and therefore it is rightly tearmed ver a virendo, as sommer is called aestas ab aestu, and then is said to begin when heate beginneth. Tacit. de mor. Germ. The name of Autumne nor the thing it selfe (as Tacitus reporteh) was not knowne to the Germaines in his time, and diuers countries haue made diuers limitations of the spring, and therefore if it bee agreed betwixt Titius and Seius that the beasts of Titius shal pasture in the groūds of Seius all the spring time, the time shall be limi­ted according to the dimension of the spring-tide in that countrey where the bargaine was made: and so it may be said of the other times, and sea­sons of the yeare, and if the occupation of a mans ground be granted to Titius, Seius, Caius, and Sem­pronius, so that Titius shall haue the occupation of the land in the spring time, Seius in sommer, Caius in winter, Sempronius in haruest, if the interest of any of the same come in question, the Iudge had need be well aduised of the certaintie, and the pe­culiar difference of these times according to the customarie obseruation of the countrey in which the grant was made, that he may suū cuique tribue­re, and giue no erroneous iudgement. Some make a bipartite diuision of the yeare into winter and [Page] sommer without mentioning the spring, and har­uest, defining the sommer to begin at the Equino­ctiall of the spring, and to end at the Equinoctiall of haruest: Vlp. in l. 1. § aestat. de ag. co. et aest. so that sommer and winter are diui­ded by sixe monethes: then I put case that land is demised to one to haue and to hold during the space of the whole sommer, whether may the les­see put in his beastes in the spring time, and it see­meth that the spring is to be excluded notwithstan­ding the diuision aforesaid, for the sommer being named aestus ab aestu the spring can haue no part in the sommer, for the spring is meane betwixt heat and colde, and therefore the said diuision see­meth to bee vnproper, for proprie non dicitur quod non dicitur secundùm quod sonat; Baldus in l. vlt. c. de haer. instit. and in Swetia & other nations lying vnder the Northerne Poale this diuision can take no place: but if a man de­uise the dwelling of his house euerie sommer to Sempronius, there it may seeme that the spring shal not bee omitted, because our dwelling is diuided into the sommer & winter dwelling: but if a man deuise his ground with all his sommer instrumēts of husbandrie, it seemeth that the spring is in this case to be excluded because there be other instru­ments of husbandrie vsed in the sommer time thē such as be vsed in the spring, winter, or haruest: But the imperiall lawes doe extend sommer from the Calendes of April, to the Calendes of Octo­ber: the residue of the yeare they allot to winter; and this diuision I will not denie to be grounded [Page 4] vpon good reason if we respect the yeare in gene­rall not in particular; for in the spring time the Sunne mounting to the toppe of one of the lines of the Equinoctial circle he commeth by degrees nearer vnto vs and so maketh summer, but in har­uest he transcēdeth the other line of the Aequator and so being farre remoued from vs causeth win­ter, and therefore not amisse by the cause of heat and cold, are the times of heate and cold distin­guished.

The moneth had his name of the Moone which in the Greeke tongue is called Mene: and the reason of the name is because the mo­neth is measured by the circumuolution of the Moone, as Plato, Plat. in Cratil. Varro, Cicero, and others haue expounded it. Some doe assigne to the t Varro lib. 5. de lingua Lat. Cicer. lib. 2. de natur. de or. moneth twentie seauen dayes, and eight ho­wers: others twentie nine dayes and twelue howers: they doe measure by the motion of the Moone from poynt to poynt in the Circle, that is, when it is reuolued from one point to the same point: These do set downe for the moneth that course of the Moone in which it doth tend reciprocally to the Sunne, from which it new­ly digressed. The Athenians did obserue the later order of the moneth, frō whom though the Ro­manes did in circumstance agree, yet in substance they accorded; for their twelue monethes did not exceed that number of daies which doth cōsist of the twelue lunarie monethes; so that it is apparant [Page] that both these nations (as all other) follow the Moone in this businesse: and for the more perfit obseruation of this course Sosigenes the Aegiptian perswaded and moued Caesar somewhat to alter the monethes, and by consequence the yeare, Plut. in vit. Caesar. neither is this abhorrent from commen vse; for let the case be that A. promiseth to B. that hee will for some consideration pay vnto B. the next mo­neth 20. li. and the assumpsit is made the eyght day of March, whether may A. haue the space of the whole moneth of Aprill to pay the money in, or hee must needes paye it before the eight day of Aprill next ensuing, accompting the mo­neth from the eight daye of March: Surely by commō intendement he hath the whole moneth of Aprill to pay it in: for the common people making more accompt of the Calender then of the Calendes doe set downe for a moneth as they find in the calender, not as curious wits may mea­sure by the calendes or by like proportion. L. 4. § Sti. si haered. de statut. Et stat. Au­gust. lib. 1. emend. c. 2.

The name of day in Latine dies, Varro deriueth a deo or dio, both which tend to one purpose. In this discourse my endeuour is rather to open the natures then the names of things. The day is thus defined by Plato in his booke De definitionibus, if that booke be his: Dies est ab ortibus ad occasus: so that how many risings & settings there are of the Sunne, so many dayes he maketh. Aristotle more exquisitly, Dies est motus Solis supra nostrum hori­zontem. Aristotle Topic. 5. Two kinds of daies are most in vse, the [Page 5] ciuill day and the naturall day: the ciuill day it is therefore tearmed because diuers cities and coun­tries made great diuersities of daies, to which they did allot seuerall compasse of time. The Ro­mains did deduce the day from midnight to mid­night Plinie lib. 2. c. 77. next following, placing the day as it were betwixt two nightes, as in the beginning of the world night was before the day, and night fol­lowed it: but the day of the Vmbrians was from midday to midday: of the Athenians from Sun sett to Sunne-set: of the Babilonians from the ryse of Sunne, to Sunne rysing: the naturall day is that which consisteth of 24. howers be­ing the space wherein the Sunne is rowled a­bout by the motion of the whole bodie of the heauen from a certaine poynt to the same point. The Astronomers make the beginning of this day at noone day or midday, as the Vmbrians; be­cause to all inhabitants of nations continuing still in their regions the sun commeth alwayes at that time to their Meridian, and to that circle which is caried through the toppes and poales of the hea­uen: and euery region hath his meridian of one sort though they haue diuers meridians in num­ber & in particular, but the rising & falling of the sunne is not in any region alway of one sort, be­cause the points are chaunged, and we see the sun diuersly to rise & fall: so that the Vmbrians may seeme in this to haue done rightly, the Athenians and Babilonians not rightly, the Romaines most [Page] rightely, who haue not as the other nations con­trary to the order of nature, placed the night in the middest of the day, but haue made the night as the two extremes of the day, & therefore haue placed part of the night in the beginning of the day, and part in the end: of which consideration our law may seeme to haue takē regard in that the forepart of the night it assigneth to the day going before, & the later part to the day following, which may euidently appeare by the inditements of burgla­ry: Crompt. I. P. tit. indicta­menta in sin. lib. fol. 224. but the reason of the Romane constitution is learnedly deliuered by Plutarche: Plut. in quaest. Roman. qu. 83. at midnight (saith he) when the day of the Romains doth be­gin, the sunne is in that region in the lowest point of the heauen, from which it beginneth to tende and to returne to vs and to ascend to our Hemis­pheare: wherefore rightly doth the day beginne then when the sunne that is the cause of the day doth moue toward vs, & therefore this constituti­on of the Romanes must needs seeme more pro­bable then that of the Vmbrians, because the be­ginning of a thing is rather to bee referred to that time when the thing groweth to existence, then when it declineth and beginneth to leaue his exi­stence, so that the opinion seemeth to be good, 11. Elizab. in my Lord Dyer his reports; that whereas the case was that a lease was made to one of land the eight day of May to haue & to hold for twen­tie & one yeares thence next after ensuing, & the lessee entred the eight day, and his entrie seemed [Page 6] lawfull, and that he did not enter as a disseisor, for by the word ( thence) the first instance of the day in which the demise was made is to be intended, and not the next day ensuing the date: 11. Eliz. 2 [...]6. Dyer. so that I cannot see vpon what reason in the accompting of the sixe monethes according to the statute of 27. H. 8. of enrolments the day of the date of the deede of bargaine & sale shall not be accompted for any; 5. Eliz. 2 [...]. Dyer. but the vulgar and common sort of men of all countries doe accompt the day from light to darkenesse, which order the Canonistes do ob­serue; Comment. ad l. Titius § Luci. de lib. & post. the night as Plato defineth it Plat. in lib. de definit. according to common admittance is nothing els but darke­nesse: Euentide is immediately after Sunset: twi­light is a doubtful time equally consisting of light and darknesse, which is alwaies after euentide. For as betwixt knowledge, and ignorance there bee two meanes, namely doubting, and opinion, so betwixt day & night there is euentide & twilight. Ignorāce is like to night, doubting like to twilight, opiniō is like to euentide, because as opinion kno­weth after a sort, but knoweth not truely & surely, because it is not grounded vpon certain reason: so euentide is after a sort day, but absolutely & fully it is not, because it is destitute, & bereft of the clere light of the sunne: knowledge which relyeth vp­on the sound foundation of things knowne is an­swerable to the day, which is full of cleare, and perfite light. Now as opinion is more like to ig­norance then to knowledge; so euen-tide is more [Page] like to night, whereupon ensueth that twilight must needs bee more like vnto night: but now suppose that a paiment of money is assumed to be made within the compasse of such a day, whether is it to be intended of the Romaine day, or some other ciuill day, or the natural day which is whol­ly in vse amongst the Venetians: for in Venice the clocke is told foure and twenty times for the day: and it is meete that this question should be decy­ded by the custome of each countrie.

Now come we to speake of howers, which to the Romaines were not in vse during the space of three hundred yeares: therefore in their lawes of the twelue tables, times are otherwise set downe, namely, Sunne-rise Noone, and Sunsett: the first, second, third, and fourth watch, plenum forum, ful market, boum solutio, the time of the loosing of the oxen from the plough, accensa lumina, candle light, and such like names. But to know the pro­per vse of these howers that are fitte to bee ob­serued, which Paulus the Ciuilian noteth: Cu­iusque diei maior pars est horarum septem primarum diei, non supremarum: he meaneth not that there should be fourteene howers of the day, because it is manifest that there are but twelue, but his meaning is that the greatest parte of the day is spent in the first seuen howers, if you accompt from the first hower to the seuenth inclusiuè, as namelye, from sixe a clocke in the morning to twelue a clocke: for then there will re­mayne [Page 7] to the other parte of the day but fiue ho­wers; And the former parte of the day is not onely the better for the number of howers, but because men in these howers are more apt for the dispatch of their busines: Wherefore Nonius Noni. lib 9. de compendi­osa doctrin. vp­on these wordes of Virgill: ‘Nunc adeo melior quoniam pars acta diei est’ commenteth thus. Our youth is the best part of our age, and so Maro wisely calleth the first part of the day the better part, as being the youth of the day: for if a man should number seauen howers from a eleuen of the cloke to fiue in the afternoone; yet these howers will not be so conuenient for perfit­ting of busines, as the seauen abouesaid: and ther­fore he that demaundeth six pence for trauayling to a place on foote from eleuen to fiue, to which an other hath gon for a groat from six to twelue, is not altogether vniust, because in the afternoone men be more vnapt and more vnable to trauaile.

The last and least part of time (if it be any part of time) is a moment, which may better be ima­gined then described, for it is as swift as a man can imagin: and what is more swift then imagina­tion? It hath receyued a definition somewhat ob­scure of Plato: Momentum est quod nullo prorsus in tempore est Pla. in Par­men. ▪ It is taken by some to be punctum temporis: for as a mathematicall point is that cuius nulla est pars, so a moment is a point of time cuius nulla est pars: yet Pliny seemeth to distinguish more rhetorically then truely punctum temporis [Page] from a moment when he saith: Quod momen­tum, aut immo quod temporis punctum, aut beneficio sterile, aut vacuum laude Plini. in Panegyr., the existence of a mo­ment cannot possibly be discerned, and therfore is not so much as the twinckling of an eye. The vse of a moment is more fit for the operation of Law, then for the act of a man: for the Law doth ope­rate without compasse of time in an instant, but man neuer; for euery act of man must haue space longer or shorter, according to the qualitie of the work: But the nature of such instants or moments which the Law doth imagin is such & so sodaine, vt omnem respuant moram, as in the Ciuill Law is well noted l. 23. §. vlt. D. de adult.: And the reason is because in the ope­ration of Law, that which it doth imagin to be done, is dicto citius, presently, and without delay done l. in suis. D. de lib. et post.: and therefore it is commonly said, it is done ipso iure, or it is said ipso iure, or ipso facto. But this course can not be obserued in the actions of men, who can not doe any thing without space of time, because their act is alwayes continuate, and therefore must needes be done continuo tempore. And whereas the act of man is mixt with the act of Law: though in regard of the same thing the act of the Law be momentary, yet the act of man must needes beare some delay. Those thinges by the ciuill Law which are taken from enemies, doe incontinent become his who doth seise and take them l. 5. §. vlt. de acquir. re. [...]o., The Law doth giue them vnto him pre­sently, but yet there must be a time to take them, [Page 8] that the Law may giue them. And so if when a Lease is made to A. of land for the terme of the life of B, and A. dieth, C. entreth into the land, and inioyeth it, as an occupant; the Law because it wil not haue the freehold in suspence, doth ima­gin that it was presently and immediatly in C. after the death of A, and that he entred presently: but if we respect this entrie as the act of man, we must needes imagin that he had some time to en­ter into the land, and by his entrie, which is an act consisting of motion, to gaine the freehold.

It remaineth now according to our purpose, that after this discourse of the partes of time, some thing should be spoken of the differences of time, which I will handle verie briefely: for the matters precedent haue giuen some light thereunto, and they are not of themselues verie obscure.

And first to speak of the time which we cal a con­tinuall time: that in the ciuill Law is sometime ta­ken for as much as (during a mans life l. 1. §. pe. de off. pre. vrb. l. 2. C. de his qui latr.) and ther­fore he that hath purchased land for his life, is tear­med Perpetuarius Alci. lib. 1. parer. g. c. 37.: and in the common Law these wordes ( a touts iours ) make but an estate for life Littlet. lib. 1. cap. 1. fo. 1., yet in proper sense it extendeth vnto the last mark of time: A long or short time is distinguished either by the measure of the parts of time abouesaid, or by the measure of the Law, which is the discretion of the Iudge. The differēce which is made of aun­cient time and of late time in the ciuill Law, is ra­ther plain thē ponderous, Vetus accipietur quod non [Page] est nouum In l. 11. de triui. leg.: And therefore the law of the twelue Tables they call their auncient Law, and that which followeth it the new Law l. 1. l. 3. D. de pet. haered.. But in this sense the Law of Nations should be the auncient Law, and all other humane Lawes, new Lawes, but auncient by the interpretation of a good Ci­uilian is that, cuius initij memoria non extat l. 2. in prin. de ag. plu. ar. c. §. idem lab. aut si in agr., and he expoundeth this to be: if there be none aliue which knoweth when it had his beginning: Nei­ther hath any heard of the beginning of the thing of those which did know it Idem Lab. aut cum quaeri­tur eo.. A certaine time is that which hath a certaine beginning and ending; An vncertaine time is directly contrary: Certaine times are the yeare, the day, the moneth, &c. An vncertaine time is signifyed by these wordes; be­fore, after, in times past, some time, about such a time, &c. But there be diuers sortes of vncertaine times: First, either that which is altogether vn­certaine, as when such a ship shall come out of Asia: for we know not whether it shall at any time come from thence, or when it shall come. Se­condly, that is said to be vncertain, which though it be vncertaine whether it shall be or no: yet if it be admitted to be, it is certaine when it shall be: as if I graunt vnto one the Corne that shall grow in such a ground, for I know not whether it shall grow or no: Or if I promise to be a godfather to that child which shall be borne of Martha, within three daies after it be borne, for I know not whe­ther any shall be borne: Or if I promise to pay [Page 9] such a summe of money when Titius shall be of full age: here it is well knowne when Titius shall be of full age, but it is vncertaine whether he shall liue till he come to full age. 3. that is vn­certaine, which though it be certaine that it shall be, yet it is vncertaine when it shall be; as the howre of death. The present time is so small and vnsensible, that it is almost of no continuance, and it is but the conioyning of that time which is past to that which is to come; Time past is that which wanteth his beginning; And time future is that which neuer had ending. A conuenient time is after diuers sorts: First, either it is conuenient for some, and not for all; as when some causes are to be heard, and not other some: Secondly, or profi­table for all, but not alwaies; as the Termes whilest there are no dayes of vacation, dies non iuridici: Thirdly, or it is profitable for all, and alwaies; as the Assises.

The second Chapter.
That by the Law of Nations, Emperors, Kinges, and absolute Monarches, haue full power and auc­thoritie to seise the Landes and Goods of their sub­iects, condemned for heinous offences.

IF any man be so straitly minded, that he thinketh this prerogatiue to be too large and ample for an absolute Mo­narche: let him think there withall that [Page] himselfe is so base minded, that he cannot suffici­ently iudge of the great worth and demerit of so high an estate: for the name of a king importeth so great paines and charge, that a kingdome see­meth not to be a sufficient or counteruailable re­compence: For Themistocles his choise must ei­ther be verie reasonable, or exceeding despe­rate, when he accompted it better to sinke into his graue, then to ascende to a throan: Wherfore not doubting of the great charge of it, let vs examin the continuall custome of Nations in the execu­ting of this power. S. Lewis the French king, fa­mous in that nation for integritie, & iustice, doub­ted not by publike iudgement to prescribe the farmes, lordships, and landes of Peter the Earle of Dreux: And so were the goods and possessions of Charles Duke of Burbon seised and forfeited Bodi. lib. 5. de repub. c. 3.. And they haue a Law in Scotland, that the goodes of persons condemned shall go wholie to the Esche­quer without any deduction or reprisall to wife, creditor, or children. The Romanes did allot their fines, penalties, and forfaitures to the sacrifice, and seruice of their Goddes, and therefore they were called Sacramenta Festus in verb. sacra­ment.. But the Athenians did giue onely the tenth part of the goodes that were for­feited to religious vses: as may appeare by the re­cord of the condemnation of Archiptolemus and Antiphon, which runneth in these tearmes, Ar­chiptolemus & Antiphon vndecim-uiris capitalibus ad extremum supplicium traditi: bona eorum publi­cata, [Page 10] decima Mineruae data, domus eorum solo aequatae: And although Iustinian the Emperour did vpon some scrupulous conceit abrogate the Law of gi­uing the goods of condemned persons to the pub­like treasury, and did therefore establish a Law, that they should remaine to their children Authent. bona damna­to. de bonis d [...]mnator. C.. Yet diuers held this Law to be new, & different from the course of auncient Law-makers: for euen in the most auncient times in case of high Treason in all common weales of the world, such forfei­tures haue been admitted: for it was thought that the goodes of such persons condemned, were either by fraude, violence, or other corrupt cour­ses wrested from the common weale: and there­fore were to be restored to it againe: or els be­cause such persons hauing offended against the common weale should satisfy it that way: & ther­fore were such goodes conueyed away by Law from wife and children, because for the most part they were vniustly heaped together for the ad­uancement of wife and children. But such prero­gatiues haue been in auncient time so firmely an­nexed to the Septer and estate roiall, that by the ciuill Law such things which are properly called iura maiestatis, by the common Law iura regalia, cannot be seuered from the regall dignity, & ther­fore Baldus calleth them g sacra sacrorum, and Cy­nus, indiuidua h, the inseparable incidents of a king­dom: And by the ciuil Law such things can not be seuered from the princely Diadem, neither can [Page] [...] [Page 10] [...] [Page] any man prescribe in them Bald. con. 174. lib. 3. et con. 193. eo.. And so it is said in our Law, that where the King hath any commo­ditie in the right of his Crowne; as if he haue a Mine conteining in it gold or siluer, by the graunt of the land in which it is conteined, the Mine doth not passe, because he hath that by his prerogatiue royall, and they be two seuerall thinges and of di­uers degrees 10. Elizab. Com. Infor­macion pur Mines 310. per Wray.. And whereas the Priorie of Wen­locke was one of the auncient Priories which were of the foundation of the Crowne, and the King graunted the said Priorie in ample words: yet the King onely did medle with the Mines of gold and siluer that were in it Fitz. Na. br. Corrod. 232.: And by the graunt omnium & singularum Minerarum, these Mines shall not passe Com. Inf. pur Mines ib.. And though the king graunt to one the retourne of all maner of writtes, yet he shall not haue the retourne of the summons of the Eschequer, because that toucheth the Crowne, and is not betwixt partie and partie 22. E. 3. lib. Assis. pla. 49.. Neither by the Law of England can any man prescribe in such thinges: For it is said 1. H. 7. that no fraun­chise may prescribe to hold plea of Treason; and whether the king may graunt any such libertie or no, the Iustices were in great doubt 1. H. 7. 23.. But 46. E. 3. it was held by Kniuet Iustice, that a man might claime a fraunchise of Infangtheefe, and Outfang­theefe, and waife and straye by prescription; but he cannot haue the chattels of Fugitiues or Felons, vnlesse it be by especiall graunt, because that it belongeth vnto the King as to his Crowne, and [Page 11] therefore can not passe from him, but by speci­all graunt: 46. E. 3. 16. and 21. H. 6. this diuersitie is taken: such thinges as accrue to the king by matter of re­corde, as the fines, issues, and amerciamentes of courtes doe not lie in prescription: but in such things as belong to the crowne, & the title of thē doth not grow by matter of record, as waife, stray, wrecke of the sea, treasure founde, and the like a man may praescribe in, 21. H. 6. praescript. 44. but as these are speciall prerogatiues which are graunted to a prince so they are graunted for speciall causes: by which princes must bee directed not by their owne vo­luntary conceits or vnsatiable desires, least it hap­pen that magna imperia, be magna latrocinia: for good gouernours will not imitate the lewd mo­narches of nations, as Caligula, Nero, Caracalla, Ca­rinus, Romaine Emperours, nor Seleucus, nor A­lexander the great, or rather the proud, which did claime a generall and absolute power indefinite & illimitate ouer all mē, ouer all things, without dif­ference or exception: which did thinke that they might giue lawes to others and not to bee bound by any; which pretended that there was but one law for all common weales, and that was to obey euerie thing which the king commaunded, and that that was iust in regard of the subiectes which was profitable to their ruler, like to that prince of pirats and robbers in Heliodorus, Heliod. lib. 1. Aethiop. histor. Si imperij lege v­tendum fuisset, prorsus mihi velle suffecisset: Like to that saying of Iulius Caesar the vsurper. Sylla lite­ras [Page] nescijt qui dictaturam deposuit: mecum homi­nes consideratius loqui debent, ac pro legibus habere quae dico: Sueton in Caesar. like to that of Iulianus though spiced with some sprinkle of mildnesse: Polliceor absque omni praerogatiua principum, qui quod dixerint, vel sensuerint pro potestate authoritatis iustum esse existi­mant: Ammian Marcell. lib. 23. or like to that sinister clause of the Popes insolent vanitie ( de plenitudine potestatis,) the last of which wordes Baldus playing withall, put­teth in steade of it tempestatis: Alciat. reg. 3. praes. 8. et ad L. 2. C. de in ius voc. yet I will easi­lie graunt, that if any prince doe by sword and conquest subdue any countrie; as the whole countrey is gained and possessed by this exploit: so all the landes and goods of euery inhabitant in that countrey are his, vntill hee did giue them or restore them vnto the former owners: As by the lawe of this realme of England, if a man be attainted of felonie, and the Queene pardoneth him all fellonies, and executions, and doth like­wise pardon and release all forfeitures of lands and tenements, and of goods and chattels, this pardon and this release cannot serue but onely for the life of the partie, if the office be found, for then the land is the Queenes by matter of recorde, and therefore there must bee expresse wordes of restitution: and as to the goodes, the Queene is entituled to them without office: 29. H. 8. Br. chart. de pard. 52. so if it be found by office that I. N. the Queenes tenant was seised of certayne landes, and dyed seysed, and that W. his heyre intruded, and af­ter [Page 12] by acte of parliament the Queene pardoneth all intrusions, in this case the entrie and offence are pardoned and released, but not the issues, and profits: for the Queene was before entitled by matter of recorde 33. H. 8. Br. charters de par. 71. intrusi. 21. Issues ret. 22. for when any thing com­meth to princely possession which did before belong to any inferior person, it cannot bee re­stored to him without actuall donation. And Xenophon sayeth, that it hath beene a perpetuall lawe amongest all men, that all thinges taken by warre, whether they bee money, goods, or men, doe belong to them which tooke them: Xenoph. lib. 7. Cyropae. and Thucydides affirmeth the same to bee a common lawe to all nations: Thucyd. l. 3 howbeit the Romanes rather by mercy then rigor of lawe were onely content with the tenth parte of the goods, and did remitte the residue to the con­quered persons. Appian. lib. de bel. ciuil. 2. And it hath alwaies beene ac­compted the propertie of barbarous nations to haue no lawe written nor ratified by common consent, neither touching these rights nor pre­rogatiues, nor other matters, but onely the vo­luntarie conceite of the monarch, as Liuie hath iudiciously obserued: Liui. lib. 37. But Aristotle maketh one exception from the rule, and that is of the Spartan Kings, whome hee affirmeth to haue directed their actions by prescript of lawe: and Diodorus f) Ar. 3. polit. Siculus saith, that the Aegyptian kings did first be­ginne to rule by a setled and determinate lawe, and that all other nations were gouerned by [Page] the chaungeable wil of their soueraigne, Diodor. Si­cul. lib. 2. and the Romanes did after refine themselues as appeareth by Plinie speaking to Traian; Te legibus subiecisti, legibus Caesar, quas nemo principi scripsit: And pre­sently after he saith, Quod ego nunc primum audio, nunc primum dico: non est princeps supra leges, sed le­ges supra principem. Plin. in Panegyr. But to open and declare fur­ther the soueraigne and ample authoritie of mo­narches ouer the lands and goodes of their sub­iects, though it haue beene in auncient times held and affirmed by the ciuill law, that such thinges as are parcell of the law of nations could not be ta­ken away by the prince from his subiectes: and therefore they might not be depriued of their de­mesnes or inheritance of lands, or of the property of their goods and chattels which they enioy by the law of nations: § Sed natu­ral. instit. de iu. na. as I haue sufficiently shewed in my Direction to the study of the Law, Cap. 7. & 8. but onely of such thinges as belong to them by the Ciuill law: yet by the opinion of the later Ciuilians this is helde to bee no law, but that the Princes haue for speciall causes free disposall of their landes and goods as Decius fully proueth Deci. Cons. 209. in casu 2. 69. consultus. 390. quoniam 519. visis. 557. accurate., and this later opinion seemeth to bee more rea­sonable, and more consonant to the truth: for first though the distinction of demesnes and the propertie of goods be parcel of the law of nations, yet the meanes wherby they are acquired are pre­scribed by the ciuill and common lawe: so that they are not altogether parcell of the law of nati­ons: [Page 13] Bal. & [...]a. in l. omnes. C. Si con. ius vel vtilitat. pub. Againe the right of demesne and property is not alike in all nations, Herodot. li. 4. Strab. lib. 11. Arist. lib. 2. polit. Tacit. de mor. Germa. Caes. lib. 4. & 6. de bel. Gal. but is moderated, and ordered by the lawes of particular cōmon weales; But suppose that the king wil take away from any of his subiectes the right and power of vsing and pursuing an action for the recouery of their lands, goods, chattels, or dammages: Surely this is per­mitted by no law, but by the ciuill l. 2. C. de prec. imp. off. and common law expressely prohibited: for the king cannot grant to any person that he shal not be impleaded or sued, in this or that action: & though his high­nesse may graunt that I. S. for trespasses or any thing done wrongfully in his mannor of Dale shal hold conisance of pleas within the same man­nor, yet in this case he doth not take away the ac­tion of the partie, but doth onely restreine him to bring his actiō in a certain place: 8. H. 6. 19. But here it may be obiected that a king or absolute monarch may p) li. vlt. C. de consul. without cause seise the lands & goods of his sub­iects: for it is plaine that a king hath more power ouer his subiectes, then the father hath ouer his children: but by the ciuil law the father may take away the goods of his children when hee will: l. placet. 79. D. de acquir. haere. l. acqui­rit. 10. D. de acquir. re. do. therefore the king may take away &c. To this rea­son grounded vpon the ciuill lawe, I do thus an­swere, that by the law of nations kinges haue not such an indefinite power ouer their subiects as fa­thers by the ciuill law haue ouer their children: for by the law of nations kinges were chosen and ordeined at the first for the safegard and protecti­on [Page] of the lands goods & persons of their subiects, so that they may not without cause bereaue them of their goods, and therefore there is a good rule in the ciuill law that in priuatorum agris, nihil ne publico quidem consilio cum ipsorum iniuria capi ius est. l. Venditor. 13. D. de com. praed. And to that purpose Cicero speaketh well: Videndum erit ei qui rempub. administrabit, vt suum quisque teneat, neque de bonis priuatorum publice di­minutio fiat: and for this cause God did appoint a certain portion of land to euery tribe of the Isra­elites: Deutero. 17 and by reason of a priuate title Naboth would not sell, or chaunge his vineyard with A­chab 1. Reg. 21. and in the inauguration of the king of Hun­garie this was exacted of him by oath: vt iura regni integra conseruaret: C. in tellect. 33. ex tr. de iu­reiuran. And in the ciuill law it is said, Qui pleno iure Dominus est, alienandi, dissipan­di disperdendi, ius habet: l. 7. cod. de relig. l. sed etsi l. 25. §. consuluit D. de hae [...]ed. petit. And againe, suae quisque rei arbiter, ac moderator est. l. in reman­dat. 21. C. de mand. So that it is euident that without cause, the propertie which subiectes haue in goodes and landes may not bee altered by their prince. And therefore wittily sayeth D. Gentilis, that they which argue to the contrarie do not dispute, or drawe their arguments ex castis fontibus Philosophiae, aut ex ipsis iurisprudentiae riuis, sed escholis sophistarum: hallucinati sunt Theologi, a­dulati sunt iurisconsulti, qui omnia principibus lice­re asceuerarunt: Alberic. Gentil. Dec. 1. disput. 2. disput. I would not be mistaken in this Chapter, sithence I hold an indifferent course be­twixt prince and people: neither consenting to them which say, that princes may seise the lands [Page 14] and goods of their subiects without cause, nor to them which thinke that they may not seyse their lands and goods for any cause: but my resolution is, and the summe of this discourse is, if it bee dili­gently and impartially obserued, that princes may lawfully claime, and take to their owne vse the lands and goods of their subiects for the causes a­bouesaid, and prescribed by lawe, and not other­wise: and by this word (Princes) I meane none but absolute Monarches: for the law of nations alloweth this prerogatiue to none other. And therfore I do greatly like of that saying of Hipocra­tes vrged in the ciuill law: Lex est rerum omnium domina, quia scilicet & ciuitatis cuiusque & ciuium singulorū patrimonium constituit, definit, tuetur: Lex sola dominiū rerum confert: sola dominij acquirendi modos constituit, citra quos acquiri nullius rei domini­um potest. §. 2. de bon. posses. & apud Vlpi eo. tit. reg. 19. This foundation being laid, I hope my assertion may firmely stande that the law of Eng­land in giuing to the Queene the lands and goods of subiects for some peculiar causes is iust and rea­sonable: as when a true man is pursued as a felon, and he flieth, and waiueth his owne goods, these are forfeited as if they had beene goods stolne. 29. E. 3. 29. 37. H. 8. Br. Estray. 9. Stam. fol. 186. a. And so if a man be outlawed of felony or treason, he shall forfeyt all the landes & tenements which he had at the time of the felony or treason cōmit­ted, or at any time after, as well as if he had beene attainted by verdict: 28. H. 6. 5. howsoeuer M. Parkins hol­deth opinion that attaynder by outlawrie shall haue relation to the exigent, as to the landes [Page] and tenements: so that a feoffement of land, or a graunt of rent made before the exigent awarded by him that is attainted in such manner is good in his conceit: but he saith that as to an attainder by verdict, that it shal haue relation to the time of the felony done, according to the supposall of the in­ditement, as to lands and tenementes: and so it is of an attainder by confession: Parkins Graunts. 6. But M. Stam­ford being better aduised saith, that as soone as a­ny of the offences aforesaid are committed, hee is restrained to make a gift or any other alienation of his lande: and if he doe, it shall presently bee made void by his attainder, and it is not materiall whether the attainder be by outlawrie or verdict, and this is agreeable to the booke of 38. E. 3. fol. 37. Stamford fol. lib. 3. 31. [...]. but he saith that the forfeiture of the goods by attainder by outlawrie shall haue relation to the exigent, and forfeiture by attainder by verdict shall haue relation to the verdict. Stamford. 192.

The third Chapter.
That the worthinesse of blood hath beene principally respected of all nations.

THe diuision of inheritances in stirpes, & in capita, hath made great diuision in diuerse common weales, yet in all of them the worthinesse of bloud hath beene regarded: By the Romane law the sonne of [Page 15] the elder sonne who is dead shall equally suc­ceede in the inheritance with the second sonne. And whereas in Germanie there was a conten­tion betwixt the vncles and nephewes of the right of inheritances, and for the deciding of it, the Emperour Otto the first, did cause a Parliament or generall assemblie of estates to be held for the dis­ceptation, and deciding of this doubt: When after much busines and argument, no determina­tion could be had, the matter was ordeined to be tried by single combate, an vsuall thing in these daies (for it was about the yeare of the incarnati­on of our Sauiour nine hundred fortie and two Witichin­dus lib. 2. hi­stor. 2. Sige­bert in chro­nic. Ottonis 1.) and a formall triall referred to God, when mans wit was at a nonplus: But in this case, that part ouercame which did accompt the sonnes of elder sonnes as sonnes; and therefore it was ratified by Law, that they should equally diuide the inheri­tance with their vncles. Amongest other nations diuers contentions haue risen about this matter: for when Eunomus the King of the Lacedemonians had two sonnes, Polydectes the elder, and Lycurgus the yonger, and Polydectes deceased leauing no sonne lyuing at the time of his death, and there­fore Eunomus being dead, the septer of that king­dome came to the handes of Lycurgus: afterward when Polydectes his widow had brought forth a sonne, Lycurgus did willingly, and readilie yeeld to him the septer Plut. in vit. Lycurg. Iustin. lib. hist. 3.: Which act of Lycurgus agreeth fully with our Law, whereby it is ruled, that if a [Page] man haue a sonne, and a daughter, and the sonne purchaseth land, and dyeth, and the daughter en­treth, and after the father begetteth an other sonne of the same wife, this sonne shall haue the land 19. H. 6. 6.. So if a man enfeoffe an other vpon condition, and the condition is broken, and the feoffor dyeth without issue his wife priuement enseint, and the brother of the feoffor entreth for the condition broken, and after a sonne is borne, he shall auoide the possession of his vncle, & may lawfully claime the inheritance 9. H. 7. 25.. And it is likewise said, that after two, or more discents, the heire afterward borne claiming by discent may enter into the land; but he shall not haue a writ of Accompt for the mesne profites, nor any writ of Wast 9. H. 6. 23.. But in cases of purchase the Law taketh a difference, and therfore it is said 5. E. 4. by Billing, that if a man deuise land to a man, and his heire, and the deuisee dieth ha­uing issue a daughter, his wife being priuement en­seint with a sonne, who is afterward borne, the daughter shal reteine the land in perpetuum, which the Court graunted 5. E. 4. 6.. And 9. H. 6. it is said, that if a remainder cannot veste in any at the time when it falleth, it shall not veste in him that is borne afterward, where an other hath entred before 9. H. 6. 23. 2. Eliz. 190. pla. 18.. But to retourne to the examination of this matter by historie, Pausanias reporteth that Cleomenes the king of the Lacedaemonians being dead, a con­trouersie sprung betwixt Areus the sonne of Aco­ratus the eldest sonne of Cleomenes, who died be­fore [Page 16] his father, and Cleonymus the second sonne, the vncle of Areus, but by Senate-decree the king­dome was adiudged to Areus Pausan. lib. 3.. And Polydore Vir­gill reporteth that king Edward the third being de­ceased, Richard the second, the sonne of his eldest sonne obteined the kingdome, and was preferred before Iohn, Edmund, and Thomas, the sonnes of king Edward Polyd. virg. in hist. reg. Angl.. Paulus Aemilius an excellent wri­ter of the matters of Fraunce likewise telleth, that when Hanno had inuaded the kingdome, and ex­pulsed Erkenbalde the sonne of his elder bro­ther, this matter was brought into question: in the ende Hanno was constrayned to laie aside armes, and to stande to the iudgement of the Peeres, who adiudged that Erkenbalde should haue the same power and interest in the king­dome, which his father might haue had if he had suruiued Paul. Aemil. in tit. Carol. Crass.. Neither will I denie that examples may be produced on the contrarie part: as name­lie the contention betwixt Artemenes and Xerxes for the kingdome of Persia: for it is deliuered by Herodotus Herodot. lib. 7., Iustin Iustinus lib. 11., Plutarch Plut. in Ar­taxerx., that a controuer­sie beeing raysed in the kingdome of Persia be­twixt Artabazanes (as Herodotus) Artemenes, as ( Iustinus calleth him) and Xerxes the sonnes of Darius Hystaspes about the succession in the Monarchie of Persia, Demaratus was at the same time there, who was driuen and expulsed out of the kingdome of Sparta, and he signified vnto them, that the Law and custome of the Spartanes [Page] was, that the sonne that was borne after the father had attained to the kingdome, was to be preferred before the elder brother who was borne before; for which cause the kingdome was adiudged to Xerxes the yonger sonne, who was borne of Da­rius being king, whereas the other was begotten of him being a priuate man: But this iudgement was after reuersed; For when after the death of Darius, the same controuersie was handled be­twixt Arsica begotten of Darius being a priuate man, and Cyrus being borne of him after his ad­uauncement to the kingdome, and Parysatis the mother did in the behalf of Cyrus vrge and reuiue the controuersie betwixt Xerxes, and his brother, the Persians notwithstanding the former iudge­ment, did now adiudge the kingdome to Arsica Plut. in vit. Artaxerx.. Neither am I moued though in the contention for the Dukedome of Millayne, betwixt Lodwike and Galeatius bretheren, whereof the one was borne before his father obteined the Dukedome, the other after, the contrarie were determined for Law Guicciard. lib. 1. histor.: For by the most examples of euery com­mon weale, and by the continuall practise of na­tions most ciuill (which onely course I obserue in this discourse) the right of Primogeniture, or elder-brothership is fenced, supported, and defen­ded against this last decree of the Millanasses, and that first of the Persians: For Herod the king of the Iewes, did preferre in the succession of his kingdome Antipater, who was borne before he [Page 17] was king, before Alexander and Aristobulus be­gotten after he was king Ioseph. lib. antiquit. 16.. And many yeares af­ter in Hungarie, Bela their king being dead, Geysa being borne when he was a priuate man was in­uested with the Crowne Fl. Blondus Decad. 2. lib. 6. Micha. Ri­tius lib. de re­gi. Hungar. 2.: and before that Otto the first could be setled in the Empire of Rome, his brother Henry made a quarrell to it, because he was borne when his father was Emperor: But the matter discending to armes, and battaile, victorie did adiudge the Empire to Otto Sigebert. in Chron.: Wherefore two or more contrarie examples are not in this case to be regarded; As that of Genzericus the king of the Vandales, who made his testament in this forme, or rather this Law in forme of his testa­ment, Si Rex moritur, qui ei genere proximus, et natu maximus erit regni haeres esto: for Procopius no­teth his great age when he made this Law, and it may be that others will note him for his dotage if he did amisse, for his discretion, if he did it to pre­uent a daunger Procop. lib. de bel. Vandal. 3.. So when Charles the king of Sicely died he had two sonnes, Charles Martell, and Robert: Martellus died liuing his father, but leauing a sonne, whereupon the Lawyers had plentiful matter of disputation offered vnto them, whether the sonnes sonne should be preferred be­fore the vncle in the possession of his graundfa­ther: but by the Popes meanes, Robert obteyned the kingdome: But the Emperour Fredericke re­uersed this sentence, and the Pope cancelled his rescript r. But D. Bartolus giueth this reason of [Page] the Popes doinges, because the kingdome of Sicilia was one of the fees of the Church of Rome, so that it did not belong to Robert by any lawfull succession, but by the graunt and inuestiture of the Lord of the fee Barto. in Arth. post fratr. C. de legit. haered.. Neither is it materiall that the Nomades, Barbarians, did preferre the yonger bretherne before the chil­dren of the elder bretherne, as Strabo repor­teth: [...]. Strabo lib. 16. yet I will graunt that in the succession of regall digni­ties, the worthines of bloud is lesse to bee re­spected, then in the succession of common in­heritances, because in that case the commo­ditie of the subiectes, and the abilitie of them that are to succeede is politikelie to bee re­spected: And therefore diuers Ciuilians doe with vnited consent pronounce that the good estate of the kingdome and subiectes, the pro­fite, peace, and safetie of the same, is more to be heeded quàm sanguinis series, the course of bloud Luc. de Pen. in 5. nepot. C. qui num. lib. 10. et in l. 1. C. de lyro. lib. 12. Bald. in c. 1. de feud. March.. And Roboam preferred Abias his yonger sonne, before his elder bretherne in the succession of his kingdome 2 paralip. 11. And Salomon the yonger brother 2. Reg. 1. was preferred before his elder bretherne: But this must be done warilie, and by the warrant of a good conscience, other­wise it can neyther please God, nor profite man, least a king doe by his choise preiudice his subiectes; as Micipsa did by the adoption of [Page 18] Iugurtha Salust. in bel. Iugurth.. But the reasons are manie and force­able, wherefore the worthines of bloude shall in the course and conueiance of inheritances bee principally respected. First, Ius quod personae inest per modum substantiae, est ab ea insepara­bile, et in nullo alio subiecto potest verificari Arg. l. for did. C. de ex­cus. mun. lib. 10.. But ius primogeniturae is in the eldest sonne, or in his issue per modum substantiae: therefore it is inseparable from him, and cannot extende to any other. Secondly, the aucthoritie of Vl­pian prooueth it, affirming that hee is a pa­tritian, who is borne before his father was made a Senator, as well as he, who is borne after that hee is possessed of the Senatorie cal­ling l. Senator. S. D. de Senat.. Thirdly, it is apparant by manie pla­ces in the feudall Law, that sonnes and ne­phewes may succeede in the fees, and inheri­tances of Dukes, Marquesses, and Earles: and so it is of the inferiour and vulgar sort of men. And it is well said of D. Hotoman: Ius sangui­nis quod in legitimis successionibus spectatur, ipso natiuitatis tempore quaesitum est. Fourthly, it should bee against all Lawes proximitatis gra­duum, that they which are in a more remote de­gree the worthines of consanguinitie should be preferred before them that are in a neerer degree. Fifthly, because Primogenitura is an insepara­ble incident to the eldest sonne, and whatso­euer is claymed by this, must bee claymed by [Page] the person of the eldest sonne, and none can suc­ceede in the place of the first begotten as first begotten, because there cannot be two first be­gotten: But no Law more respecteth the worthi­nes of bloud then the common Law, which pre­ferreth the brother before the sister in case of dis­cent: the elder brother before the yonger, where­as the middle brother purchaseth land: the sister before the vncle, and the vncle before the co­sin Littlet. tit. Fee simple., and all these particular prerogatiues of kin­red Mast. Littleton windeth vp as it were in one clew, when he saith, that when a man purcha­seth land in fee simple, and dieth without issue, euery one, that is his next cosin collaterall for default of issue may inherite: and therefore it was well and wisely agreed by the Iustices deci­mo quinto Elizab. in Cleeres case, that in a colla­terall discent from any which purchaseth landes, and tenements, and dyeth without issue, the heires of the part of the father and which are of the bloud of the auncestors males in the lineall ascension by the father in the same degree, as the brother of the graundfather of the fathers side, and his issues be they male or female shall be preferred before the brother of the graund­mother of the father side and his issues: And so the brother of the great graundfather of the fathers side, namely the brother of the father, of the father, of the father of the purchasour and his issues bee they male or female shall [Page 19] bee preferred before the mother of the great grandmother, namely the brother of the mother of the father of the father of the purchasor and his issues. For the female sexe is more base then the male in lawe. And it was likewise agreede, that if the purchasor dyed without issue, and hath not any heire of the part of the father that the land shall discend to the next heire of the parte of the mother, that is, to the race of the heyre of the males of whence the mother is discended, ra­ther then to others, and in this case of Clere be­cause the bloud which was betwixt the vncle of the part of the mother of the heire, and the heire himselfe came immediatly by the womā, but the bloud which was betwixt the cosin germane of the fathers side, & him though it came originally from the woman, namely the grandmother, yet it is deriued to the heire by the males, so that the dignitie of the bloud doth surprise and excell the proximitie of the degree; therefore it was adiud­ged that the cosin should haue the land. 15. Eliz. comm. cleres case. 442.

The fourth Chapter.
That in making title by prescription and continuance of time immemoriall, all nations haue consented.

OF all worldly thinges time is most puissant: for it endeth some things quickly, some things once, and at last, some things it preserueth, some things it continueth vnto the end of the world, and the force of time is pretily de­scribed in these poems.

Res omnes, aeurum, chalibem, deglutio, ferrum,
stagna, lacus, fontes, ebibo, tum fluuios,
Tabida consumit lignum, lapides (que) vetustas:
nullaquè res maius tempore robur habet.

If by the course of nature time be such an in­croacher vpon other things, then surely arte & law doth imitate nature which giue vnto it such po­wer and authoritie, as to chaunge, to raise, to alter, to defeat, to strengthen and to establish titles, nei­ther doth the law of nations attend the strict cir­cumstances of the ciuil or common law, in which these two lawes doe square: for by the ciuill lawe there is required iust title which the common law requireth not: and bona fides Gl. si. c. illud de prescrip. which the com­mon law requireth not and continuall possession, which the common lawe onely requireth. Pre­scription [Page 20] was first brought in, that there might be a certainty of titles and peaceable possession with­out contradiction, for a long time might turne to a right: wherefore it is well obserued in the ciuill lawe bono publico intraducta est vsucapio, & prae­scriptio vt sit aliquis litium finis: b. lib. 1. de vsucap. whereupon that speech of the Lacedemonians in Isocrates is grounded: Wee holde this lande giuen vnto vs by the posteritie of Hercules, confirmed by the Del­phicke Oracle, and the inhabitantes of it being o­uercome of vs (heere note a triple title in showe, and yet all these in effect but a prescription) yee knowe well that all possessions eyther priuate or pub­like to bee confirmed by prescription of long time: we haue held Messana more then foure hundred yeares. Isocra. in Arch. And so Iepthe did pleade prescription against the Ammonites; Iudic. c. 11. This land (said he) haue wee possest three hundred yeares. The French main­taine their title of Fraunce onely by prescription, as Bodinus confesseth: Bodin. lib. de repub. for conquered it was by king Edward the third that happie & triumphant Monarch: assured to King Henry the fifth and his heires, Graft. in H. 5 not to Queene Katherine and her heyres: Pet. Mar. comm. in lib. iud. And some Diuines holde (for others doe oppose themselues against this lawe of pre­scription) Aug. de te. ser. 105. Epi­phan. and obserue that the Iewes neuer made question of the title of their Semi, because the Cananites did defend themselues by the pre­scription of 500. yeares: wherefore Artabanus the Parthian king did, as Tacitus sayeth, Per vanilo­quentiam [Page] vainely demaund of Tiberius the territo­ries & possessions of the Macedonians hauing bin h) Tacit ann. li. 6 a long time possest of Cyrus and Alexander. And Soliman more soundly did demaunde the rightes of Constantine the Emperour after a thousande yeares. Ioui. 30. 34. But most vnaduisedly of all did the king of Persia demaund all these thinges which did belong to the Persian Empire from the first foun­dation of their Monarchie vnto the conquest of Alexander Magnus, of Constantine and his sonne, and of Alexander Seuerus: Herodia. li. 6. zon. Ammi. lib. 17. as if the auncient inhabitants of Pannonia should now claime Hun­garie which the Hunnes did conquer, name, and to this day keepe: and vaine was the quarrell which Masinissa made to the Carthaginians lande, Liui. lib. 34. alleadging that they ought to haue no more then Dido the Tyrian Queene enioy­ed, which was no more then coulde bee com­passed by the hyde of an Oxe being curt into thonges, for they had possest these landes al­most seauen hundred yeares: likewise weake was the title which Antiochus the great pretended a­gainst the Aetolians and the Ionians, because these people were once subiect vnto his auncestors: & hee is well confuted of the Romanes by the lawe of prescription, that though his great grandfather, did atchiue these cities by warre yet his grandfa­ther and father neuer enioyed them, but the cities enioyed their libertie. There be some interpreters of the lawe, which thinke the king of Fraunce by [Page 21] prescription to be exempted from the Emperours subiection, Fulg. Sacc. lib. 1. C. tit. 1. against whom rather adulatoriously then aptly Alciat replyeth, that no prescription of time wil hold place against the Empire: Alciat. lib. 5. de iust. for that is not true in a prescription of time, which is im­memoriall, that is when no man as it may be com­monly beleeued, hath eyther seene or heard the contrary: and this by the ciuill law is the space of one hundred yeares. Alexan. 5. Cons. 16. Alci­at. 3. cons. 24. But here before I wil grant that such prescription will hold against a king or an Emperor, this is onely in such case where ney­ther possession hath beene had, nor clayme made against the said king or Emperor, for if claime on­ly haue beene made as the kings and Queenes of England haue done in entitling themselues kings and Queenes of Fraunce, and beare in their scut­chions the ensignes and armes of that kingdome, and so keep the ciuil possession of that kingdome, though they haue lost the corporall possession in such case I do not thinke that the prescription of a thousand yeares ought to preuaile: but in a case of a common person prescription will hardly run against the prince. Therefore it hath beene held in our bookes, that if the kinges tenant in Capite bee seised of an aduowson, and the church happeneth voide, and hee dyeth, and the sixe monethes doe passe, (nay suppose sixe score yeares doe passe) p) 14. H. 7. fol. 22. then an office is found, the king shal haue the pre­sentment notwithstanding the laps before the of­fice. But if the question be asked whether the or­dinary [Page] may present by laps against the king, and if he may not, how the cure shall bee serued in the meane time betwixt the laps, and the kinges pre­sentment: Ibid. fol. 21. It is answered by some that the ordi­narie may present one who shall be remouable at the kings will, and some thinke that he shal seque­ster the profites of the benefice to serue the cure: but in some case the King may not surcease his time, as if the tenant for terme of life do forfeit his estate to the king, if he be not seised during his life hee may not afterward seise it, 8. H. 5. Trauers. 47. but in this case the reason is because hee can haue no other estate then he which forfeiteth, and he which commeth in of the estate of an other can haue no greater right then he had: for if a man haue land in the right of his wife, or in the right of a Church hee can not haue it otherwise then the Church or the wife hath it: 18. E. 3. 20. so if there be Lord and tenant, and the tenant alieneth in mortmaine, and the Lorde entreth, yet hee shall haue onely such right in the land as he hath in the seigniorie, notwithstanding that the statute do say, Quod proximus dominus in­trabit & retinebit in feodo: 39. E. 3. 38. 50. E. 3. 21. l. 5. E. 4. 61. For this is grounded vpon naturall reason, and naturalia sunt immutabi­lia: and the princely prescription must bee main­tained bona fide. Wherefore the Duke of Sauoy which had the Cittie of Nice in pledge of the French King, did vniustly withhold that Cittie frō the king being the lawful owner then, because hee had inueterate possession in the same, for by [Page 22] the ciuil law a man may not prescribe in a pledge: l. 9. C. de pl. act. Deci. 3. consi. 108. and Iouius is likewise angrie against the king of Fraunce himselfe for keeping Perpinianum in the like sort: Parum sincera fide (saith he) veteris pacti conditionem multis cauillationibus inuoluebat: Iou. lib. 1. for it is true that Cephalus saith, in quaestione valde dubi­tabili non est praescriptio. Ceph. cons. 102. But surely bonafides is requisite in such matters of prescription, except it be apparāt that the will of God is for the prescrip­tion: Wherefore Bellarmin confesseth, that the Turke doth lawfully possesse such thinges as hee hath taken from vs because God his will is that for our sins we should be cast out of the land, where­in we and our ancestors inhabited. Bellar. 5. contr. But he doth not possesse them bonafide, because hee can not by any speciall meane conuey them particularly to himselfe, for as Doctor Gentilis hath well ob­serued: An Turcae opinio latrocinantis cogitat de iu­sta voluntate Dei. Alb. Gentil. lib. de iu. bel. 1. 22. Aratus the Sicyonian was so strong and peremptorie for the title of prescrip­tion, that hee did not thinke it conuenient to re­moue or take away from the vsurpers any thing that they haue violently taken from the owner, if they haue had possession during the space of fiftie yeares onely. Cicer. 2. de offic. Prescription hath alwayes beene of force to hinder these that had right to pursue their clayme: Wherefore Demosthenes sayth well; Hee that hath helde an other mans landes or goodes a long time should not please himself therewith, but impute it to fortune which [Page] hath hindred the lawfull owners. Demosth. ad maca. Is any thing more to bee laughed at then that which is said of some interpreters of the law, who are not to bee laughed at, that the kingdome of Spaine may now be claimed by the Romane Emperour, by reason of his ancient imperiall right, whereas it is mani­fest that sithence the time of the ancient Romane Emperours, it hath beene a long time possest of the Saracens, a long time of the Spaniards.

The fifth Chapter.
That by the consent of all nations consent principally maketh a lawfull mariage.

IF a man should examine the se­ueral rites, circumstances, and ce­remonies of the diuers people of the worlde in the knitting and celebrating of mariage, he might as well number and obserue the diuerse-couloured spottes of the Chamaeleon: for euery nation hath had in this by some fatall lotte both their custome and chaunge of cu­stome: I will onely endeuor to proue that which is conteined in my assertion, that by the consent of all nations &c. The definition of thinges is alway the best proofe: therefore it is good to beginne this discourse with the definition of mariage: [Page 23] Mariage is the lawfull coniunction of man and wo­man, conteining an indiuiduall societie of life, and the participation of diuine and humane right 30. q. c. nul­lam., where it is said, a lawfull coniunction, nothing els is meant, but a free consent executed by the contract, which as it is the beginning of the definition, so it is the ground of the mariage, and these wordes, contei­ning an indiuiduall societie of life, do signifie that they shall continue foreuer together as long as they liue: Howbeit the rule of the common Law do in this sauour of the irregular Religion, Post contractum matrimonij ante carnalem copulam possit alter altero inuito religionem intrare Gazalup. in verb. nuptiae.. And for the further proofe that the ground of mariage is con­sent, there be three thinges by the Canon Law re­quired to mariage Codi. ap. C. vlti. c. 27. q. 2., Fides, Proles, and Sacramen­tum: Fidelitie which is put in the first place is the hart of mariage, and it springeth of consent: and therefore if a man do contract with a woman in this sort, Contraho tecum si te pro quaestu adulter an­dum exposueris, this is no contract of mariage, be­cause it is contra bonum fidei, which consisteth in this, that neither of the maried couple shall break the bond of mariage, but shall faithfully and vnitedly obserue it. Likewise Progenie is an other thing that mariage requireth, and therefore it can not be a good contract of mariage, if it be made in this forme, Contraho tecum si generationem prolis euites, or si venenum sterilitatis accipias, because mariage was instituted of God for the solace of [Page] man, and the multiplication of mankind by chil­dren. Thirdly, a solemne promise is requisite in mariage: and therefore if a man do contract with a woman donec ditiorem, vel pulchriorem habeat fae­minam, this is no good league of mariage, be­cause it is contrarie to the oath of an indiuiduall societie. And so if any man in a foreine land sucking as yet the smoak of the Popes Tobaccho be a votarie to Religion, and a bondslaue to his cloyster; for England (the Lord be praised) is at this day as free from Monkes, as it is from wolues. Three things are required at his handes, namely, chastitie, obedience, and the abdication of pro­pertie, as well in landes as in goodes Gazalup. in verb. ma­trimon.: But that consent hath been the ground of Matrimoniall contractes, may appeare by the vsuall course and practise of nations: Wherefore Virgill exclay­meth against Romulus for marrying the Sabine women against their willes, and accompteth it rather a rape, then a mariage, Raptas sine more S [...] ­binas: sine more, that is, contrarie to the custome of nations Virgil. 8. Aeneid.. And Propertius inueyeth against him for this more vehemently Propert. 2. Eleg. 6.:

—tu criminis author,
Nutritus duro Romule lacte lupae
Tu rapere intactas docuisti impune Sabinas.

Yea diuines Tertullian and S. Augustine haue sharpely reprooued this fact of Romulus Tertul. de de spect. et adu. val., and [Page 24] Cyprian agreeth vnto them, reprehending Ro­mulus in this maner, Vt Matrimonium facias rem concordiae per discordiam auspicaris, rapis, faero­cis, fallis, & nuptiae tibi sunt rupta hospitij faedera Cypri. lib. 4. de ido. na.. By the Ciuill Law mariage may bee conclu­ded by an oath, which beeing but a contract, it called sponsalia de futuro ff. de verb. sing. l. verbum erit.: And so in aun­cient time the Law seemed to be, as may ap­peare by these wrested words of Cydippe to Acon­tius:

Iuro tibi sanè per mystica sacra Dianae,
Me tibi venturam comitem sponsam (que) futuram
Ouid. in epistol.
.

The mariage betwixt Dido and Aeneas was by consent accorded, by consent prosecuted, by consent executed, beeing witnessed and cele­brated coelo tonante, and no otherwise Virgil. lib. 4.: for the Phrygian and Tyrian Lordes followed their hun­ting, whilest the great hound of all caried away the hare. And the mariage betwixt Martia and Cato wittily described by Lucan had no pub­lique attestation, but the presence of Brutus onelie:

Pignora nulla domus, nulli coiere propinqui,
Iunguntur taciti contenti (que) auspice Bruto
Luca. lib. 2.
.

But I would not be so vnderstood, as though I should haue this meaning, that nothing els is re­quisite to the perfection of mariage, but onelie the bare consent: For to explane my meaning more at large, I hold that euen by the Law of Nations, consent is onlie the efficient cause of mariage: but [Page] the materiall cause is corporum coniunctio, the for­mall, the bringing of the wife into the husbandes house, et aquae, et ignis interuentus: and therefore in my opinion D. Hotoman is not iustly reproo­ued of D. Gentilis Alberic. Gentil. lib. 3. lectio. et epi­stolar. c. 6., for holding that this de­ductio in domum is the formall cause of mariage, for though the Emperour say L. 15. D. de cond. et dem., vxor fuisti: deductio in domum ostendit, so that by the opinion of Gentilis, this deductio shall be onely a proofe, and argument of the mariage & no substantiall forme of it: yet by his fauour this is nether logike nor reason; for may not an argument be drawne à causa formali, and because anima is a signe corporis animati: for a man may reason thus, animam ha­bet: ergo est corpus animatum: therefore shall not anima be the forme of a lyuing bodie? But if we will be ruled by Iustinian, the opinion of D. Ho­toman seemeth in this to be neerer to the truth, though his learning and iudgement, if I haue any iudgement, be farre inferiour to the worthines of Gentilis: yet I acknowledge them both to be worthy men, et vitulo tu dignus & hic. But to ex­amin the rule of the Emperour, which before I spake of, non impletur nuptiarum conditio nisi nup­tiarum accedat festiuitas L. sancimus 24. C. de nup., it seemeth that there must be necessarilie deductio in mariti domum, as may appeare by the auncient custome of the Ro­manes in their mariages, which is briefely glaun­ced at by Virgill in these wordes, Sparge marite nuces Virgil. in Bucolic., to which there is a custome in some part [Page 25] of England somewhat correspondent, which hath been much vsed, namely, that the husband brea­keth a cake ouer the head of the wife, as soone as she is within the threshold of his house: which custome and the like I will neither commend, nor discommend, but will onely censure them some­what agreeably to Senecaes Augusti. lib. de ciuit. dei. 6. c. 10. ex Senec. lib. de super stiti. et matri­mon. censure of certaine pointes of the ciuill theologie of the Romaines, Haec omnia populus seruabit tanquam cōsuetudine re­cepta, non tanquam deo accepta. And though Genti­lis presse Hotoman with this obiection out of the ciuill Law, that the mariage may be celebrated by an other, viro absente; but not muliere absente l. 5. D. de ri. nup.: Yet that is no ordinarie course of mariage, but ex­traordinarie: As when the parties cannot conue­niently come together, as being seuered by Sea, which hapned lately in the case of Iames king of Scots, who was maried to Anne the sister of the king of Denmarke, by a substitute or enter-deux, as Chythraeus reporteth Chytr. lib. de reb. orb. ar­cto. ab anno 1580. vs (que) an 1590. Eyzin­ger. in thes. princip.. And the cannon Law which D. Gentilis too hastilie calleth irrationale, erroneum, caecum, auarum totum Alberic. Gentil. lib. 1. lecti. et epi­stolar. c. 11., will shew this difference vnto him: for it maketh two sorts of mariage, both lawfull and perfite, yet the one it tearmeth verum, the other praesumptum. Verum Matrimonium is thus defined: Which is made be­twixt lawfull persons by apt wordes, all impediment of law remoued: The other is thus defined, which by the interuention of some other is celebrated be­twixt lawfull persons by the arbitrage of some others, [Page] and there doth not immediatly succeede copula carna­lis Gof. in tract. de con­trah.. But in deed these verie wordes, duxisse vxo­rem, which signifieth the complementall act of mariage doth sufficiently import the necessitie of the forme of mariage aboue mentioned. The effi­cient, materiall, and formall causes of mariage haue been aboue shewed: The finall cause, as all will agree, is the propagation of children l. si vicin. 9. c. de nup., and the restraint of wanton lust: If this assertion should be examined by the ciuill Law, it might receiue great disputation, varying and straying wholie from scripture, the authentike of Religion, yet wholie for consent: for the ciuill Law is so strange for consent, that it is positiuely set downe by a great Ciuilian; That if a man doe vse too fami­liar acquaintance with a gentlewoman that setteth not her bodie to sale vnto him, that this is not con­cubinage, but mariage Modestin. in l. in liber. 24. D. de rit. nup.. An other Ciuilian hol­deth, that a woman to whom one hath shewed an husbandlie affection, ought in continuancc of time to be accompted his wife Papin. in l. donation. 31. D. de donat.: To whom agreeth Vl­pian saying as boldlie and libidinously, Betwixt a concubine and a wife there is no difference, ex­cept the wife be a more worthy parsonage Vlpian. in l. item legato. 49. §. 1. D. de leg. 3.. Yea euen in the bodie of their Law it is set downe for a rule, that inter concubinatum et matrimo­nium nihil nisi affectio interest L. 3. §. 1. D. de donat. in­ter vir & vxor.: ingenua (que) mu­lier domi ante testationem pro vxore habenda est d. These are the oracles of the parots and parasites of the Romane Emperours, who sought to sholder [Page 26] out the truth of God his word, and to varnish their owne sinnes, by the dreames of such disso­lute Lawyers, who thought perhaps that they might as wel defende, as commit fornication, and concubinage: Vpon whose reuerend opinions the Pope sprinckleth the holie-water of his dis­pensations, yea and dispenseth for incestuous ma­riage, not onely with Dukes, and noble men, but as Angelus Perusinus sheweth, euen with Barbors, Tailors, and Butchers Angel. Per. in l. matrem. § filiam ad Treb.. But it is fitlie said by some, that he doth rather dissipare quàm dispensare Felin. post Doct. in C. quae ecclesiarū de constit.. And others haue been bolde to saie, that he which ob­teineth such dispensation, perhaps will hardlie escape in foro poli, in the court of heauen, how­soeuer hee be safe in foro Romae, in the court of Rome Arg. C. fin. de praescript. et Alci. in l. 5. pe­dum C. fini re­gund.. Howsoeuer the Canonistes, whereof the most part doe beare the cognisance of the whoore of Babylon, do auouch that by such dis­pensation, veritas naturae per Papam non tollitur, (which he cannot doe though he would) sed in­umbratur: and therefore saie they, the dispensa­tion is lawfull Arg. c. sedes de rescript. l. 3. §. permit., an argument drawne from the owles nest, and from no place of Logike: But the Emperour Theodosius speaketh onelie of a lawfull and honest consent, in more modest tearmes, saying: Matrimonium absquè vlla pompa et celebritate nuptiarum, atquè adeo abs (que) vllis dota­tibus instrumentis firmum est, liberi (que) ex eo sus­cepti iusti sunt: Heere the Emperour excludeth pompe from mariage, but not consent: Neither [Page] doth he admit concubinage to be mariage l. si donati­onum. 22. c. de nup.. It is now shewed that consent is required by the im­periall Law to the constitution or making of ma­riage. It shall not be amisse to inquire, whether it were necessarie or no by the auncient Law of the Romanes, which was in the time of their flo­rishing estate, the Law almost of all the Nations of the world, as Ouids speech importeth:

Gentibus est alijs tellus data limite certo
Romanae spatium est vrbis, & orbis idem
Ouid. 2. Fastor.
.

And Claudian auoucheth the same, though he li­ued when the Romane common weale was much empaired:

Armorum legum (que) parens quae fundit in omnes
Imperium, primiquè dedit cunabulacuris
Claud. 3. stil.
.

By the auncient Law of the Romanes, if a woman had been kept in a mans house by the space of a yeare, he might claime her as his wife Hotomanus in comment. ad duodecim tabul.: And by that Law a man might lend his wife to his friend, for the procreating of children Strabo lib. 11. Plut. in Cat. Tertul. in apologet.; as Cato lent his wife for that purpose to Hortensius, which though Plutarch accompt fabulous: yet Appian reporteth it as true Appian lib. 2. de bel. ciui., and Quintilian affirmeth the same Quintil. lib. 2. c. 5.. Neither is it vnlikely that it was a custome prac­tized of the Romanes: for this lending of wiues was permitted by the Lawes of Lycurgus: and as Plutarch reporteth, it was a Law established by Numa Plut. in com­parat. Lyc. et Num.: A brutish Law doubtles, and one of the maine errors of these great common weale men, who (as the Apostle saith) became vaine [Page 27] in their thoughtes, and their foolish heart was full of darkenesse and as they regarded not to acknowledge God, so God deliuered them vp vnto a reprobate mind to doe those things which are not conuenient: D. Paul. ad Roman. 1. v. 2 [...] & 28. Now that we haue shewed that consent is necessarie for mariage, it remaineth to bee declared how farre forth it hath beene accompted necessarie. When the Romane Empire was in her infancy and first rising, it seemeth that a verie slight consent would haue serued, as may appeare by these wordes of Suetonius, writing the life of Caligula: Mar. L. Cas­sio Longino, consulari collocatam abduxit, et in mo­dum iustae vxoris propalam habuit. But of the Em­perour Constantine furtiue and priuy mariages are vtterly condemned and abiudicated: l. vxor. 7. Cod. de repub. because it is against Christianitie, to which (the Lord there­fore highly be praised) all the nations of the earth begin to open their eyes and giue their free con­sent. Such marriages as haue the publike testimo­ny of the Church are greatly commended of Tertullian: Vnde sufficiam ad enarrandam foelicita­tem eius matrimonij, quod ecclesia conciliat, & confir­mat oblatio, & obsignatum Angeli renuntiant, pater rato habet. Tertullian lib. ad vxor. 2. And the Emperour Leo hath determi­ned that the mariages of Christians shold be con­firmed by the testimony of holy and ecclesiastical prayer, and that these marriages which are other­wise contracted should not be held for good, and Harmenopolus testifieth that by ecclesiasticall Ca­nons it is prouided, That there should be no priuie [Page] mariages, and that no mariages should be celebra­ted out of the Church: Harmenop. lib. 4. c. 4. And by the common law as M. Fitzherbert saith, a woman married in a chamber shall not haue dower of her husbands c) Fizh. N. B. 150. N. lands: but he modestly saith, that it seemeth rea­sonable that shee should haue dower, M. Parkins peremptorily affirmeth, that the lawe in his time was directly to the contrarie, that the law was so in his time, I must take vpon M. Parkins credit: for I haue not read (to my remembraunce) any yeare booke which was written in his time or since, wherein that is recorded for law, as to that which M. Fitzherbert saith, that it seemeth reaso­nable, how could it seeme reasonable vnto him, vnlesse the mariage it selfe had seemed reasonable, & if he thought such a mariage to be good & law­full, therein sauing reformation hee failed, for be­side the authorities which immediatly before I haue cited, to proue that mariage must be celebra­ted in a publike place, and in publike maner, it ap­peareth, that in the Iewish common weale, that course was followed in the time of our sauiour, by part of a similitude which he vseth: Let your loines be girt about & your lights burning: & ye your selues like vnto men that waite for their master when hee wil returne from the wedding, whereby it is manifest, that some testimony of friendes and neighbors is d) Luk. c. 12. v. 35. 36. requisite to the celebration of mariage: and Pope Innocent the third reporteth, that this was no new guise, nor any popes inuention, but the custome of [Page 28] the ancient Christian Churches, that conuentiones matrimoniorum in ecclesia promulgentur. cap. 4. extr. de cland. desp. And this promulgation is in Lumbardie called Bannum, c. cum tua extra despons. in England the Banes, or asking in the Church: & by the custome of diuers common weales, it is called manasse, the giuing of hands: in c. cum tua. 6. qui matr. accus. poss. & so is the rule of Iustinian the Emperour, who saith, that if any diui­nis tactis scripturis shall sweare vnto a woman that he will marrie her, this saith he is sufficient for the contracting of marriage, but yet there must bee a publike celebration of the marriage according to the rite & solemnitie vsed in Christian churches: Iustin. Non. 74. §. 4. so then it is in some clearenes that consent prin­cipally maketh mariage, as the grounde of that strait societie, and the celebration is as the forme rising out of this materiall cause, which maketh it to bee knowne, and to bee publikely notifi­ed and ratified: for as to the age of the partie, who is to bee marryed, that hee shoulde bee plenis nubilis annis, or that hee should haue po­wer of ingendring, vt iusto accedat robur amo­ri, or that they may bee equall in degree, be­cause dulce iugum paritas, these doe not make ma­riage, but cause it to bee a more conuenient ma­riage, but the consent that maketh mariage must be ouert and expresse: for though the parties will, doe appeare in a secret will, and which may onely be proued by circumstances, yet consent is onely verified in an expresse & vnfolded wil: wherefore D. Baldus saith wel, that a neutrall consent, which [Page] is not demonstrated by word, nor by deed, is not correspondent to the actes of men, neyther doth it make them essentially perfect. Now if any man doubt whether the consent of the parties onely do knit the marriage, or the fathers consent be ne­cessarie, as to that point the ciuill lawe, which in this matter all nations follow for the reasonable­nesse of it, standeth thus. Eorum qui in potestate pa­tris sunt sine voluntate eius matrimonia iure non con­trahuntur, sed contracta non soluuntur: contemplatio enim publica vtilitatis (that is to fill the Citie or common weale with people) priuatorum commo­dis praefertur: Pant. l. 2. senten. And againe, Si forte pater concor­dans matrimonium, that is, a fit mariage) & forte li­beris subnixum (that is, confirmed by procreation of children) velit dissoluere, et certo iure patriae potesta­tis turbare, sic erit res tractanda, vt patri persuadea­tur, ne acerbe patriam potestatem exerceat. lib. 1. de lib. exh.

The sixth Chapter.
That by the practise of all nations Democracie hath beene bette downe, and Monarchie established.

DEmocracie I haue alwaies taken contra­rie to the auncient diuision of Monar­chie, aristocracie, &c. to be no forme of a common weale, if it bee properly taken for the equall sway of the people without a­ny [Page 29] superioritie: for the heele can not stand in place of the head, vnlesse the bodie be destroyed and the anatomie monstrous: it is against the na­ture of the people to beare rule: for they are as vnfitte for regiment, as a mad man to giue coun­saile, which Anacharsis well perceiuing did laugh at the assemblies and counsels of the Athenians, because they did commit the summe of their af­faires to the peoples furie: and Xenophon writeth thus of the Athenian, that is, his owne common weale: I can not allowe the state of the Athe­nians because they embrace that forme of com­mon weale, in which wicked and lewde per­sons doe more flourish then good men and innocent: Xenoph. in lib. de repub. Atheni. which commonweale notwith­standing Bodinus calleth vntruely omnium popula­rium laudatissimam, Plutarch as vntruely, omnium minime vituperandam, but if it be true that they say, in how miserable estate are other popular com­mon weales, all which (the Romane common-weale onely excepted) are farre short of the Athe­nian estate: and Machiauel did abuse his owne pen, and the patience of others, in one place preferring Democracy before al other kinds of gouernment, Machia. in obseru. in Li [...]i. yet in another place, shewing how he wold haue Italie restored to the ancient glorie and excellen­cie, he sheweth that that can not be done but by a monarchie, and onely by the Popes monarchie, Machiauel. in lib. de prin­cip. c. 9. in this point accomplishing the part rather of a magician, then a mathematicke, wishing for that [Page] which the deuill would desirously effect, but ima­gining that which in truth can neuer be: yet again he departeth from this opinion, when hee prefer­reth the Venetian common-weale before al com­monweales. Machiau. in Liui. Plato was wont to call Democracy, Nundinas populares, the peoples fayre: wherein e­uery thing was sold for money. Aristotle disagree­ing from him in many things, yet he agreeth with him in this, vtterly condemning Democracie, v­sing not onely strong reasons of his owne, but Ho­mers authority for it [...], and Maximus Tyrius a worthy man in his time, that hee might e) Maxim. Tyri. orat. 3. conuince Democracie to be a most pernicious e­uil, bringeth for proofe herof, the examples of the Athenians, the Carthaginians, the Siracusans, and the Ephesians: & if a man should seriously respect the brittle dependance of things vpō the peoples braines, he shall easily and clearely perceiue, that whosoeuer shal but ground his owne estate, much lesse the estate of the cōmon weale vpon the peo­ples fantasies, domū ex luto facit, & findeth nothing more certain then vncertain accidents, & if a man should compare honour to vulgar reputation, he might as well compare a course packthreed to the fine twist of the silkeworme, & a garland of iuie to a crown of gold: to be straight way an honest mā, because the multitude commend him, is no more necessarie then that a man should be euill, because few are like vnto him: I wold rather like a cōtrary argumēt: he is liked of the most, therfore he is not [Page 30] to be followed of the best: who was more fauou­red by the gretest part of the Troians thē the strum­pet Helena? she that was recouered & recaried for­sooth for her excellent beautie by so many thou­sand shippes, by so many valiant & vnconquered captains, after the downfal of a goodly citie, after the flames of so many wars, after so many spoiles, and homicides. The people did wonder at that paragon, as hauing excellent felicitie to be caried home in so glorious a triumph, & to be transpor­ted from Troy to Greece, from a floud of hony to a sea of nectar, being the blazing starre to that fa­mous warre which the brauest soldiers doe at this day admire: At Capis & quorum melior sententia menti, what thought they of this popular miracle? what thought Eneas? that she was Troiae & patriae communis erinnis: what thought Antenor, a wise, iust, and vertuous nobleman, Antenor censet belli praecidere causam. But if euery thing that the com­mon people approueth be commendable, what is then discommendable? euen that which deser­ueth most commendation, namely vertue it selfe. When one tolde Antisthenes that the most part li­ked him, hee demaunded of him incontinent for what vice they liked him, as if it were impossible that vertue should please the common people. Anacharsis thought it verie inconuenient that ar­tificers should contend in cunning, and these that had no arte should bee iudges of their cunning: [Page] by the same reason they that are not vertuous, can not iudge of them that be vertuous, & if they can not iudge of them, how can they with conscience praise them: and if not them, how can they with safe conscience praise others. Is it not therefore a madnes to gape for their suffrage, which are in­competent iudges, and to care for their control­ment which are vnsensible censors. Phocion liked nothing that the common people liked. Seneca thinketh that none can please the people to whom vertue is pleasant. Senec. epist. 29. The multitude haue this prouerbe verie rife in their mouthes (too ma­ny to bee good) and yet in this glasse they can not see themselues, as they likewise said ( [...]mnia ple­na stultorum) forgetting themselues.

This beast of many heades hath a threeforked tongue: with the one part it tickleth the eares of them whom they flatter: with the other it licketh their wounds: with the last, and sharpest it pricketh their hearts: with the first they flatter them, lulling their sences with faire wordes, and with soft speeches sliding into the bosome by forgeries and fables: with the other they licke their woundes, excusing their crimes, extenua­ting their faultes, cooling and calming their rage, that are incensed against them: with the third they pricke: for let the popular idoll be once crushed, none will sooner tread vpon him then the people; & if perhaps they weepe for him in this especially [Page 31] the prouerbe verified, lachryma nihil citiùs arescit: They deale with their idols as the diuell dealeth with witches: when they are in prison they leaue them: Nay, for the most part none are more proan and readie to accuse when time serueth, then these adulatorious excusers, Quo teneam vul­tum mutantem protea nodo? The wayward people may be iustly compared to a bundell of thornes, which will beare vp a great man, but will pricke him if he leane or lie vpon it: They are like the windes, which Neptune trussed vp, and deliuered in a bagge to Vlisses Ouid. in Metamorph., beeing sure as long as the mouth of the bagge is shut, but if there be neuer so little a chinke or riffe, they quicklie glaunce out, one raunging one way, an other some other way, like to Samsons foxes with fire-brandes at their tayles. What a frenzie is it therfore for any to plant his credit vpon such restles braines: as if a man should endeuour to make the sea solid, to make mountaines plaine, to build a castle in the aire, and to measure a flies foote: for these blind puppies, follies naturall children, melius, peius, pro­fit, obsit, nihil vident nisi quod lubet Terenti.. But who list to know the maners and practizes of the people more fully, let him bend the right eye of his mind to historicall contemplation, then he may see Verres accused and conuicted of diuers villa­nies, of notable spoyles and robberies, of a thou­sand excessiue briberies at the least, & false iudge­ments in number more: yet by plebiscite or po­pular [Page] determination to be quitted and freed, but by the sentence of the same Iudges, Rutilius, Me­tellus, Coriolanus, Scipio the elder, Affrican, and Cicero, men of rare vertues, are confined and ba­nished out of Rome: innocent Hermodorus is thrust out of Ephesus, Aristides chased out of Athens, Themistocles dieth in exile, Socrates endeth his life in prison: so vniust a measure to good deserts is the fantasie of the multitude. Phocion a mirror of integritie, the glorie of his time, and the ho­nour of Athens, who was fortie and fiue times chosen by the earnest desire of the people to be their chiefe Captaine, which he administred to the great good of that estate: yet in the end they condemned him to death Plut. in Phoci.. But Antiphon that vicious varlet, and steigne of Athens, was by the people absolued and acquited, as altogether inno­cent: which absolution Demosthenes not brooking, did so hotely pursue the matter, that he caused him afterward to be condemned, and put to death by the decree of the Areopagites Plut. in Demosth.. And alas, what praise can there be giuen to the people for any ac­tion commenced and caried by them? did Rome florish by popular effectes? no, Salust saith that the credit therof belonged to some fewe excel­lent gouernors Salust in princip. Ca­t [...]l.. Liuie saith, Sub vmbra Scipionis vrbem terrarum dominam latere, nutus eius pro de­cret is patrum, pro populi iussis este: Vnder the sha­dow of Scipio the Citie, the Ladie of the word did cabbon, his beckes were the decrees of the Senate, the [Page 32] commaundes of the people Liui. lib. 30.. So did the Thebane state a long time florish, but it was by the wisedome of Pelopidas, Epamondas, and other speciall men. So the Athenians hauing lost their prudent gouernor Pericles, they lost the true and essentiall forme of their Citie, which being as a ship in the middest of the sea, without mast and rudder, whilest one casteth the anchor, an other spreadeth the sayle, one keepeth the hauen, an other mooueth the sterne, all goeth sodainlie to wracke Polyb. lib. 6.. Foolish were the Argentinians, Lindouians, they of Seene, they of Genoway, they of Florence, who seeking to settle popular gouernement, did pluck vp from the roote their auncient nobilitie, and hauing made three degrees of Citizens: some great, some meane, some vulgar; They of the two last rankes did vtterlie subuert the gouerne­ment of the first, and then contending amongest themselues, did burne in such furie one against an other, that streames of bloud did run in the streetes, and the state being now couched, and deuolued to the dregges of the people, they neuer left of killing and slaughtering, till by the aduise of the Pope, and the neighbour-cities, they had wholie submitted themselues to a straunge go­uernour Anton in. et Machiauel. in hist▪ Flor.. Thus in the end they came to a Mo­narchicall estate. And these Nations which haue no resemblance of a citie in them, do create a Duke or Capitaine, who may gouerne the rest, and prescribe Law vnto them: as in Guzula a [Page] region of Affrike, and in the borders of the king­dome of Fez: They that dwell neare the moun­taine of Maguano, if they perceiue any straunger passing by, who excelleth in wisedome, they doe entreat him, or enforce him if entreatie will not serue, to deuise Lawes for them Leo Afer. in lib. de reb. Affric.. The Romanes in all their daungerous accidents did acknow­ledge the gouernement of one to be the best, and therefore chose a Dictator, whose gouernement Appian pretilie calleth regnum negatiuum, either because it denied a regall power onely in shew, or because he had authoritie to denie that which the rest had affirmed. Trepidi patres (saith Liuie) ad summum auxilium decurrunt, dictatorem dici pla­cuit Liui. lib. 6.: And againe he saith, that when Hanniball did molest Italy: ad dictatorem dicendum remedi­um iamdiu desideratum ciuitas confugit Liui. lib. 22., and such was the reuerence of the Dictator, that, as the same Liuy saith, Dictatoris edictum pro numine sem­per obseruatum Liui. lib. 6.. And Appius being Consull, gi­ueth aduise to create a Dictator for the brideling of the rage of the people, affirming minas esse con­sulum, non imperium, vbi ad eos qui vnà peccauerunt prouocare liceat, agedum Dictatorem à quo prouo­catio non est, creemus Liui. lib. 2.. But Monarchie hath been imbraced by the people of all Nations, Democracie reiected: as namely, by the Medes, Persians, Aegyptians, Parthians, Macedonians, Ara­bians, Indians, Aethiopians, Scythians, Tartarians, Turkes, Danes, French, Mosconites, Polonians, Bri­tanes, [Page 33] Affricanes, and Perusians. The name of a king saith Salust, is primum in terris. By scripture it appeareth, that kings were ordeined of God: for it is said in Deuteronomie: Thou shalt make him king ouer thee, whom the Lord thy God shall chuse: one from among thy brethren shalt thou make King ouer thee, and thou maiest not set a straunger ouer thee, which is not of thy brethren Deuteron. 17. vers. 15.. And it is said of Mo­ses: He was in Israel as King when the heades of the people, and tribes of Israel were gathered together Deutero­nom. 33. ver. 5.. And aftere the returne of the Hebrewes from Ba­bylon, where they were captiues, to their auncient countrie of Palestine, they did obey the kinges of Persia, Syria, or Aegypt, till Iudas Machabeus an Asmonite did recoyle from Antiochus the great king of Syria, and transferred the high-pristhood and kingdome into his owne familie. And as all Nations haue imbraced Monarchie, so the wisest men in all nations haue approoued it: As Ho­mer Homer. lib. Iliad. 1., Herodotus Herodot. lib. 5., Plato Plat. in po­litic., Aristotle Lib. vlt. Metaphisic., Xenophon Xenoph. in cyrop., Plutarch, Philo Plut. in lib. de creati. Regis., Apollonius Thyanaeus Philostratus., S. Ierom, S. Cyprian, Maximus Tyrius Maxim. Tyri. in orat., and Bartolus the deepe Ciuilian Bartol. in tractat. de Regim. ciuit. nu. 10., Lucan Luca. lib. 1. et 2., Aquinas Aquinas in lib. de princip., Erasmus Erasm. in lib. de instit. princip., Tacitus, S. Augustin D. Augustin. lib. 5. de ciuit. dei c. 1., and S. Ambrose whose parti­cular and plenarie assertions I omit, because I hasten now to an other matter which hath not been so much discoursed of as this.

The seuenth Chapter.
Of the Law and Iustice of Armes, of Leagues, of Embassages, and denouncing of Warre, of Truce, of Safeconduct, Captiues, Hostages, Stratagems, and Conquestes, according to the Law of Nati­ons.

IN purposing to speake at large of the Law of Armes, and the mem­bers and parcels thereof, I doe re­spect the good of the Ciuilian, who in these matters is verie often em­ployed: And of the professors of common Law, who shall not doe amisse, in considering of these thinges that shall be deliuered, for the more full opening and explaning of the Statute of 13. Rich. 2. cap. 2. which is thus: To the Constable and Mar­shall it belongeth to haue conusans and knowledge of contractes, touching feates of Armes, and of warre; out of the Realme, and also of such thinges as touch Armes or Warre within the Realme, which can not be determined, nor discussed by the Common Law &c. For the better entring into this discourse, I thinke it best to begin with the definition of Warre, which may be thus: Warre is a iust con­tention of men armed for a publike cause, for though manie thinges be done in warre without wea­pons, yet there is no warre without the furni­ture [Page 34] of weapons, and there is nothing in warre which doth not lie hidden as it were vnder the safegard of Armes, and which may not be re­ferred to the same: And it must be a publike contention, because warre is not the quarrelling fight and enmitie of priuate men: for warre is therefore called Duellum, because it is the con­tention of two equall persons Varr. lib. 6. de lingu. lati.: And there­fore the Syrians (as I am infourmed) doe thus translate the wordes of our Sauiour: What king goeth to warre against an other king Luc. 14., in this forme: What king goeth to warre against his fellow king: that is an other king equall vnto him: There­fore Lipsius his definition is to bee disliked, in that he defineth, Warre to bee force and armes against a straunge Prince or people Lipsi. in po­lit.: for by that hee maketh the outrage and violence of pri­uate men and pyrates to bee warre: for warre is a iust contention, and by this woord ( iust) excursions and depraedations are excluded: Where­fore Scipio did accompt them robbers and ring­leaders to theefes; which did deale by such kind of spoyle and pillage Liui. lib. 28. 40. 41. Flor. 2.. And Liuie censureth the Ligurians rather to be robbers then iust ene­mies, because beeing poore at home, they did inuade the dominions of others, and were more easilie ouercome then founde out: Neither did they obserue the Law of Armes, because they did slaie captiues, and cruellie dismember them. And Iouius speaking of the truce betwixt [Page] the Turkes and Hungarians saith, that by an aun­cient custome, they did make small skirmishes and extraordinarie incursions vpon the borders, if they were not resisted by the preparation of Ordinance plan­ted against their walles Ioui. lib. 36.. Warre was first brought in by necessiitie, for in that decisions of Courtes of Law, and the determining of controuersies by their rules, could not be betwixt two straunge Princes of aequall power, vnlesse they should wil­linglie agree to such an order, because they haue no superior nor ordinarie Iudge, but are supreme, and publike persons: therefore the iudgement of armes is necessarie because such warre (saith De­mosthenes) is against them which can not bee brideled by Law Demosth. de Cherson.; But processe of suit is onelie for them which are subiect: For as there be two kindes of contention; one by triall of Law; the other by triall of Armes: so we may not vse the later, if we may haue helpe by the former. This was the cause that the Romanes were wont to mooue them, with whom they dealt, that their quarrels might be ended by mutuall debating, and course of iudgement, rather then by blowes, and weapons. And so the Ardeates, and Ari­cines, the Neapolitanes, and Nolanes did referre their controuersies to the iudgement of the Ro­manes Liui. 3. Dionys. vlt. Cicer. 1. de offic.. So the Samnites did prouoke the Ro­manes to debate their cōmon cause betwixt their common friendes Liui. lib. 8.. And Archidamus said, that it was not lawfull to wage battaile against them [Page 35] which did offer themselues to bee ordered by peaceable iudgement: Thucid. l. 1. and Cyrus who is propo­sed as a patterne of an excellent prince, by Xeno­phon, a principall Philosopher and very wise Go­uernor maketh the king of the Indians an Vmpier betwixt himselfe, and the Monarch of Assiria: Xenoph. Cyropaed. 2. therfore they which flie from this peaceable kind of triall, which is nothing els but a disseptation of of words and reasons do digresse from iustice, hu­manity, & commendable examples: but it is good to bee prouided for armes, when the parties will not tollerate indifferent hearing of the cause, which the poets seeme to haue signified when they feygned Chiron the Centaure, whose vpper part did resemble a man, the inferior part a horse, to be tutor to Achilles, Statius Achilles lib. 1. that they might giue vs to vnderstand, that when a controuersie could not be moderated by reason, the strength of the horse should be vsed: for against them, which will not be ruled by equitie and reason, force is not vniust. But (as Scipio said a gouernor in warr ought like a Phisitian to vse iron and launcing in the last place; Plut. in apophth. And as to the bearing of armes, it is certaine & manifest, that priuate men, and people subiect, and inferiour princes, haue no such necessitie to make triall by battaile, because they may pursue their right by other lawfull meanes in some court of iu­stice: neither haue priuate men any authority to assemble a multitude. It is Pl [...]es law, Si quis pri­natim sine publico scitu pacem b [...]ue fecerit capital [Page] esto: Plut. lib. vit▪ de legi. If any man priuately without publike knowledge doe make warre or peace let it be capitall vnto him: for it belongeth to the power of the supreme gouernor to make warre or peace: Deci. cong. 20. and therefore by the law of Iulius it was high treason for any to leuie armes without the consent or command of the prince, l. 3. ad l. Iu. ma. & the Romanes did thinke it conuenient to yeeld such a man into the hands of them whom hee had prouoked by weapons: Appian. & Plut. in cat. mi. and vppon such oc­casion they demanded the person of Annibal: and so the Philistines vpon like cause demaunded Sampson, to whome the Iewes yeelded him; Iudic. 15. and Cato thought that the army was to be recalled, & Caesar to bee yeelded vp into the enemies power, because he maintained warre in Fraunce without the warrant of the people, in whose handes the commandement of warre and peace was: Liui. lib. 4. 16. 18. 19. but without vrgent cause and lawfull authoritie there should be no taking of armes or raysing of multi­tude, & therfore it is well prouided by the statutes of the two soueraigne Queenes & sisters, Marie & Elizabeth of England: That no man without autho­ritie, by ringing of any bell, or by sounding of any drumme, trumpet or horne, or any other instrument, by the fiering of any beacon, or any other instrument, &c. with force and armes shall alter any lawes or sta­tutes. 1. Mari. par­liam. 1. c. 12. 1. Eliz. c. 7. And in ancient times kings had the supre­macie ouer other, of commaunding or commen­cing war, and of m [...]stering men, as appeareth by the sacred historie [...]et sometime vpon a great or u) 1. Reg. cap. 8 necessarie cause, as if there be daunger in delay, or [Page 36] the soueraigne prince be absent, warre may be vn­dertaken without the commaundement of the prince, if it be vpō occasion of iust defence, which by the law of nature is graunted to euery one, and there is an excellent example to this purpose in the Romane history of L. Pinarius, who was the captain of a garrison at Enna in Sicely, who whē he did foresee the reuolt & defection of the citizens of Enna to the Carthaginians, and hee could not conueniently send ambassadors to the Consul Marcellus, though he were not far frō thence, sud­denly he did kil all the citizens, by which act Enna was still reteigned for the Romanes, & Marcellus did not disallow the deed: Liui. lib. 24. therefore Cicero com­mendeth the enterprise of Octauius Caesar, who not expecting the decree of the Senate, did of his own head vndertake war against Antonius: for the time of cōsultation was not yet come, but if he had thē omitted the time of battel, he did well foresee that the cōmon weale being oppressed, nothing could bee decreed by Senate: Cice. Philip. pic. 8. and the Senate did after allow by publike authority the war vndertakē by Octauius of his owne priuate aduise: Cic. Phi­lip. 5. so Scipio Na­sica did deserue exceeding cōmendation, who did voluntarily offer himself a captain to all good Ro­mans for the oppressing of Ti. Gracchus, together with his treacherous confederates. Valeri. Maxi. lib. 3. c. 1 Appi. de bel. ciui. lib. 1. For it is ne­cessarie (as Cicero sayth) in such perturbation and tumult rather to obey times then customes: for in peace wee must follow custome, in warre profite: but nowe as to the iustice of warres, e) lib. 2. de rep c. 5. [Page] if bellum haue his denomination a belluis, as some doe imagine, it should seeme to be vndecent and discrepant from the nature of man. Heare of that matter Sencea: Wee punish homicides and particular murders, why doe wee not punish wares and the glo­rious sinne of people slaughtered. Couetousnes & cru­eltie know no measure: By Senate-counsell and popu­lar assent bloody actions are executed and publikely commaunded, which are priuately forbidden. Senec. epist. 96. Men, a mild kind of creature, are not ashamed to boast of bloudshed, when as dumbe and reasonlesse crea­tures haue peace amongst themselues. Cuia. Critic. not. 1. &c. 2. de cla. desp. Lipsi. 2. mili. Rom. 12. And at the first sight this is a great argument, that if dumb creatures, which can not debate the causes of their anger haue peace amongst themselues, how much more ought men to doe the like, vnlesse they will be more beasts then the beasts themselues. Cyprian hath the like saying: Homecide when particular men doe it is accompted a fault: when it is publikely done it is accounted a vertue the greatnes of crueltie not the reason of innocencie doeth purchase impunitie and pardon. And fitly to the same purpose, though not purposely for the same: Lawes haue agreed to sinnes, and that is admitted to bee lawfully which is publike: Cypr. 2. ep. 2 And Seneca againe, Small theftes are punished, great are caried in triumph. Senec. ep. 88 Tertulli­an saith, that wrong is proper to warre, and as farre as his authoritie stretcheth, prohibiteth battaile to Christians: Tertullia. adu. Iud. but sithence the time of Tertullian, these opinions haue beene confuted of Diuines, [Page 37] Ciuilians, and Philosophers: for warre is accor­ding to lawe though many mischeefes do steigne it: for there doeth ensue good of it when rebels are reduced to obedience, and when peace is ac­corded: and that whose end is good, is also good it selfe: for the end of war is peace, to which and to common equitie without bloudshed, and these iniuries of warre men do seldome attain. Neither doth Seneca disalow all warres: for he praiseth the warres of Hercules: Senec. lib. 1. de benefi. as to Tertullians saying, hee did speak it vpon the consideration of such things which are vniust, and are often done in warre, not impeaching that which is vsually done of them that be iust: to Lactantius & Cyprian answere may be made after the same sort. Notwithstanding I would not haue this poyson of war admitted in­to any commonweale, vnlesse it be to expell an o­ther poison: nor this furie to be let loose, vnlesse it bee to coole the furie of others, or vpon like ne­cessitie. But now let vs sift the precedent definiti­on of warre more narrowly, and consider how warre may bee iustly maintained on both sides: which both Diuines & Ciuilians Conua. reg. peccat. §. 18. Soto. 5. de iust. q. 1. 7. view. relect. haue thus ex­pounded, saying that it may bee truely and verily iust on the one side, & on the other by ignorance, as by the voice of God the Iewes did iustly moue warre against the Cananites, and the Cananites did iustly resist the Iewes, not knowing God his will and defending themselues: and therefore it was well said of Pope Pius the second to the em­bassadors [Page] of the king of Hungarie, who did speake against the Emperour, that he thought the king of Hungarie would not depart from right and reason, and hee knew likewise that the Emperour was a louer of iustice, howsoeuer nowe they did dis­cent by warre, and that neither of them thought that hee had an vniust cause of warre. Com. Pij. 2. lib. 3. Cice­ro speaketh fittely to this purpose of the facti­on of Caesar and Pompey: There was some ob­scuritie, there was variance betwixt two excel­lent Captaines: many doubted what was the best, many what was expedient for them, many what was decent, some, what was lawfull: Cice. pro. Marcel. but the Ciuil law doth attribute the rightes of warre vnto both par­ties, the things that be possessed by warre it giueth to the possessor: captiues it maketh bond seruants to both. Now it is conuenient to discend into a more particular consideration of the causes of warre, which must not be attempted onely vpon an immoderate desire of enlarging dominions or increasing riches. To assault thy neighbours by warre (saith Augustine) and to vexe people that doe thee no hurt through an ambitious desire, what is it els but a great robberie. D. August. in. 4. de ciui­tat. Dei. Therefore the saying of the Bar­barian was as barbarous as himselfe: That is most iust in prosperous fortune, which is most forcible, and that it belongeth to a master of a familie to keepe his own but to a king to contend for that which other men possesse. But Attila which did not attend any cause or occasion of warre, did therefore worthely de­deserue [Page 38] the hatred of all men as being an enemie to q) Tacit. Ana▪ li. 15. all men: Ior. de o [...]. but the Turkes do otherwise, who most commonly pretend a cause of warfare: and ther­fore Soliman when hee endeuoured to winne the kingdome of Cyprus from the Venetians beganne to consider what pretenses he might make for the taking of armes, because it is not (as one saith) the custome of the Ottomans vpon a rage or heate of mind to enterprise warre. Natal. com. lib. 1. It is a beastly part ha­uing receiued no iniurie, to commit slaughters of men, and depopulations of cities and countries: therefore princes many times pretende causes of war, where in truth there is no cause. And Moyses sought for a good cause of quarrelling with the Emorites, though hee had a cause absolutely iust, namely the commandement of God. For when by vertue of the same commandement he was to make warre against the Emorites, & vtterly to de­stroy them, hee sent messengers to their king which might signifie thus much: I will passe by thy land, we will not turne into thy field nor vineyard, nor drinke the water of thy well, wee will keepe the right path vntill we be past thy borders. Therefore let there be a cause of warre, and let it be no small cause: for parum a nihilo vix distat. And as Pro­pertius saith:

Frangit & attollit vires in milite causa,
Quae, nisi iusta subest, excutit arma pudor.

Iust cause of warre is the defence of our coun­trie, our selues, our friends, our fellowes, & goods. A defensiue warre is grounded vpon the lawe of Nature, therefore C. Pontius the Captaine of the Samnites said well, That warre was iust vnto them, to whom it was necessarie, and that their armes are ho­nest which haue no hope of safetie but in weapons. Likewise it is a iust warre which is taken in hand for the recouerie of thinges wrongfully, and by force taken from vs by our enemies: c. iustum. q. 2 August. q. 10. sup. Iosu. lib. 2. or that the authors of the iniurie, at least, may be yeelded vp into our hands to bee punished, if they did it not by publike decree, but by priuate malice: therfore Dauid after the death of Saule did maintain warre against Isboseth the sonne of Saule, who did go about to vsurpe the kingdome of Israel, which God by Samuel the Prophet had giuen vnto Da­uid: 2. Reg. c. 2. and Romulus did therefore fight against the Sabines, because their Dictator Cluitius would not restore the things taken from the Romanes by vi­olence, nor yeelde vp into his handes them that did wronge. Dionis. Ha­licarn. lib. 3. And the reuenge of an iniurie most despightfully done, is likewise a good cause of warre: Therefore Dauid did iustly wage bat­tell against the King of the Ammonites for the disgrace and abuse offered to his ambassadors: 2. Regu. c. 20 & duob. se­quenti. and that prince hath iust cause of warre, who pursueth by armes rebelles and such as swarue from obedience: c. auctor. it. vs. quaesti. 6. cap. scir. 103. quaest. 8. for great iniury is done to God, and to the prince, when his subiectes will [Page 39] not be ordered, nor ruled by his authoritie: for there is no power but of God, and he that resisteth power as S. Paul saith, resisteth the ordinance of God Ep. ad Ro­man. c. 13., and the iniurie done to a soueraigne Ma­gistrate, is done vnto God: Who said vnto Sa­muell, of whom the people craued an other king: They haue not cast off thee, but me, that I may not reigne ouer them 1. Reg. c. 8.. And Dauid did wage battaile against Seba the sonne of Bochri, who solicited the people to reuolt from Dauid to him 2. Reg. c. 20.. But be­cause a Rebell may not properlie be called an ene­mie, when any such armes are borne against re­bels, it is not to be called a warre, but an exercise of princelie iurisdiction, vpon traiterous and dis­loiall persons Innocent. in c. olim 1. de resti. sp. et l., which was well declared by Pom­pey, in iustifying the warre mainteined by the Se­nate against Caesar, and his complices Lucan. lib. 2.:

—nequè enim ista vocari
Praelia iusta decet, patriae sed vindicis iram.

And this is confirmed by Ciceroes opinion, who did not think it conuenient to send Embassadors to Anthonie, nor to intreat him by wordes, but that it were meete to enforce him by armes to raise his siege from Mutina: for he said that they had not now to deale with Anniball an enemie to their common weale, but with a rebellious Citizen Cicer. phi­lipp. 5.. And the said Cicero writeth also to Plancus, that peace ought not to be concluded with the Antho­nians, who had besieged Brutus at Mutina, calling them shamefull theefes, which either ought to [Page] craue peace, laying aside their Armour, or if they will persist in their furie to obteine it by fight, not by composition Cicer. lib. 10. epistol. episto. 6.: Wherefore it was vnaduisedly done by the late Earle of Essex, in admitting anie article of composition with Ty­rone, and namelie for the restitution of such landes and possessions, to which the Rebels might pretende right before the rebellion: for so vpon euery iudgement giuen against them, they would presentlie haue retourned to wea­pons. And this slipperie reuolution of titles, might perhappes haue stirred them to Armes, who were in peaceable possession of these lands: so that this would haue been nothing else, but a cutting off of one of the heads of Hydra, that an other might growe: for surelie there will alwayes bee some cause and occasion of tu­mult, if men may bringe into question, anti­qua et antiquata. The Romanes would graunt nothinge at all to Rebelles, beecause theyr course was to bee sterne to the proude, and rebels in that they are rebels are proude in the highest degree: Neither ought anie of their kinred to regarde them, but to bee of Seneca his resolution: Si arma quis patriae meae infer­ret, quidquid de me meruerat perdidit, & referre illi gratiam scelus haberetur Senec. lib. vlt. de beni fi.. And exccellent is the saying of Fredericke the second to the Fa­uentines: Qui dum potest delinquit, dignus est vt [Page 40] quantum potest puniatur Sigoni. lib. 18. de re. Ital [...].. But to returne to the causes of Warre; There be some causes of ma­king warre, which wee referre to God, as com­maunding warre; as when the Iewes did referre to God the cause of the warre mooued against the Cananites Deut. 34. 4. Exod. 23. 29. Num. 33. 51. Deut. 20. 16. 17. 18.. And God denounceth irrecon­ciliable warre against the Amalekites, and he chargeth his people with perpetuall enmitie a­gainst them Exod. 17.. That kinde of Warre (saith Au­gustine is without all doubt iust, which God doth commaunde, vvith whom there is no iniquitie, and vvho knoweth vvhat ought to bee done to eue­rie man, in vvhich action the armie is not so much to bee accompted the authour of vvarre, as the mi­nister thereof August. in Ios. q. 10.. And so the Prophet Esaie said, that it was not necessarie for king Ezechias to aunsweare anie thinge to the Embassadours of the Philistines of the Israelites right in Palestine, but onelie this, That God vvould haue that land to bee his peoples Esai. 15.: Naie, the verie Heathen as the Aethiopians did vndertake euerie warre by the Oracle of Iupiter Herodot. lib. 2.. And the Spartanes by lottes and miracles, were mooued to make warre and to fight with the Argiues Xenopl [...]. 4. Graec.. And Aeneas commeth into Italie to maintaine warre by destinies, and Oracles Nat. com. 6. 14.. And the Turkes doe alwaies pretende this cause of their warre, that it is the commaundement of Mahomet, that they should persecute men of diuerse Religion: [Page] therefore they and the Persians, the one seeming haereticall to the other, are in continuall warre. And the late king of Spaine Phillip, did pretende this defence of his warres (as some testifie) that they were against Infidels, and Heretikes Ferrat. de inimic. §. 7. et 17.. Yet a Doctor of his owne sect Baltasar Ayala thinketh that warre is not to be leuied against Infidels, be­cause they be Infidels, although the Emperor or Pope should commaund it: for their infidelitie doth not depriue them of these demesnes, which uu Baltas. Ayal. lib. 1. de iur. bel. c. 2. they haue by the Law of Nations: for the earth was not giuen to the faithfull onelie, but to euery reasonable creature: for the earth is the Lordes, and the fulnes thereof, the round world and who­soeuer dwell therein Genes. c. 1. Exod. 9. 29. Psal. 24. 1.. And the Lord maketh his Sunne to shine both vpon the good and the bad Math. 5. in fin. et c. 6. in princip., and though Nabuchadnezer were an Infidell, yet the Lord did giue vnto him kingdome and prin­cipalitie Ierem. 27. 6.. But in grounding warre vpon diuine causes, it is good to be certaine of God his will, and not to credit the aequiuocall prophecies and fantasies of men light-headed and possest of fierie spirits, fit to kindle tumults and vprores: for the warrants of such men are nothing els, but the wracke of a number of men. Such was the oracle of that Scot vnto his king, consulting with him of warre against England, Ibis, redibis, nunquam in bello moriturus, which fell out afterward to be true, being thus distinguished: Ibis, redibis nun­quam in bello moriturus. Such was the warrant of [Page 41] the Eremit, moouing the imperiall armie to fight against the Ligurians Carol. S [...] ­gon in vit. An­dr. Anti.. Such were the fond pro­phecies of Ball, or according to some Chronicles Wall a priest, who stirred vp a rebellious armie in the time of king Richard the second I. Stow in Rich. 2.. But from warres which displaie the banner, I will passe to leagues which wrap it vp: 2. As warres haue been by the Law of Nations mainteined, so lea­gues haue been concluded: for as Cicero saith: It a bellum suscipiatur vt nihil aliud quàm pax quae­sita videatur Cicer. 1. offic.. Such was the opinion of S. Au­gustine, as appeareth by the Canon Law: Pacem habere debet voluntas, bellum necessitas: non enim pax quaeritur, vt bellum excitetur, sed bellum geri­tur vt pax acquiratur C. 3. 23. q. 1.. And that is expedient for the Conqueror, according to the saying of Euri­pides: Pacem reduci velle victoria expedit, victo ne­cesse est. But the Conqueror ought to be of that power, that he may be able to make perpetuall peace: for it is one of the naturall properties of peace to be perpetuall: For such was the forme of peace, which the Romanes concluded: Roma­nis & Latinorum populis pax esto, dum coelum et terra stationem eandem obtinent Dionys. Halicarnas. lib. 6.. And so the Ro­mane Emperour, and the Persian king did esta­blish peace sine termino Procop. 1. lib. de bel. Pers., in concluding peace, publike profit must be especially regarded; which Hanniball therefore tearmed vinculum maxi­mum Liui. 36.: and before him Demosthenes tearmed it so Demosth. ad Ep. Phi.. And sometime priuate profite is respected, [Page] when it is a mean or waie to publike profite: Wherefore Duaren saith pleasantly and fitlie: We see verie often, that as of a comedie, so of a warre, the finall conclusion is a mariage Duar. c. 3. de rit. nup.: But it is good to make peace, so that there be no feare of fu­ture tumult, and vnquietnes: Therefore Len­tulus his counsaile was good against the Cartha­ginians: Quoniam perfidiam non possumus tollere, ante omnia debilitemus potentiam Appia. in bel. punic.. And Cato of this matter speaketh to the Spaniardes: Id ne fiat vno modo caueri potest, si effectum erit ne possitis rebellare Liui. 34.. And Iphicrates doth well aunswere the Lacedaemonians, promising all faithfulnes, and all possible securitie, that he could not rest vpon anie other faith, or other securitie then this, that it should bee apparant vnto him, that they could not doe anie hurt, though they would. The reason of this sure and warie dea­ling with enemies, Saint Ierom wittilie shew­eth: Quis vnquam mortalium iuxta viperam secu­ros somnos capit, quae etsi non percutiat, certè sol­licitat: Securius igitur est perire non posse, quàm iuxta periculum non perijsse Hieron. ep. 47.: Who did euer rest quietly, sleeping neare to a Viper, which though shee doe not stinge, yet shee doth vexe? It is therefore more secure to be able to auoide danger, then not to haue pe­rished, where there is hazard of perishing. The effects of peace concluded are diuerse, for either wea­pons are laide aside, or the parties agree vp­on [Page 42] condition, or the fight receiueth some re­streints, or limitations: for when both parties are wearie, both of paines and of expence, this is rather an ending of warre, then a concluding of peace; as Tacitus saith in the like case: Bel­lum magis desierat quàm pax caeperat Tac. 4. annal.. And the like matter Cicero, in the like sort censureth: Summum otium sed senescentis magis ciuitatis quàm quiescentis Cic. ep. ad Qu. fr. lib. 2. ep. 14.: Wherefore it is good to make and ratifie perseueraunce of peace, beecause the reliques of the disease after the crisis doe manie times worke the ruyne and subuersion of our health. And according to the rule of Phisicke: The ashes of putrified bodyes will soone inflame the humours Hippoer. 6. epid. 2. et Merc. ad 2. de mor.: And therefore Tul­lus that artificiall warriour, in articulating peace with the Albanes, putteth them in minde, that they ought not so much to settle present peace, as to prouide for future agreements Dionys. 3.. And worthelie doth Isocrates reprooue the Graeci­ans, because they did not compounde, but de­laie enmities, vntill such time as one of them might destroie an other Isoc. in pa­negyr.. And excellent is that saying of Cicero: Pax est non in armis positis, at in abiecto omni armorum metu Cic. 10. lib. epist. Iam. epist. 6.. But to speake some what of the diuersities of ma­king peace, if this clause bee comprehended in the Articles, That one of the parties should preserue the Maiestie and aucthoritie of the other with all kindnes and faithfulnes. Doctor Baldus [Page] tearmeth this simplicem adhaerentiam Bal. 5. cons. 106., whereby (as Romanus expoundeth it) the weaker part doth adhere to the mightier: non vt subditi fiunt, sed vt defendantur Rom. cons. 417.. This adherence is lesse then pro­tection: and he that is an herent, or vnder pro­tection, is not presentlie vnder iurisdiction, but is onelie defensible from iniuries and violence, and that by souldiers and armour: Wherefore I wonder at Alciat, when hee saith, Faederati La­tine loquentibus subditi sunt, non sotij Alcia. 7. cons. 13., aut ad­haerentes. Neither is it any subiection, though they giue somewhat in signe of superioritie Castal. de imp. q. 109.. Neither were the Carthaginians and Macedonian [...] subiect to the Romanes, though they did paie vnto them a yearely tribute. But if a League be once contracted, it bindeth verie strongelie and effectuallie; and that certaine ministeries or du­tifull respectes were by reason of such Leagues due and demaundable, may euidentlie appeare by the League contracted betwixt the Ro­manes and the Lacedaemonians, wherein it was expressed, that they should liue according to their owne Lawes, and should not conferre anie thing in name of tribute, saue onelie cer­taine friendlie ministeries, and offices Strabo lib. 8.. And for the further proofe of the straitnes and strength of this publike bonde, this forme of League was found ingrauen in an auncient stone: Batari fra­tres, & amici populi Romani Dio lib. 69.: So that Bodinus is not to be harkened vnto, who thinketh that [Page 43] by freindship or league contracted betwixt nati­ons, no aide is due vnlesse it bee expressely men­tioned Bodi. lib. 5. de rep. c. vit.: for Baldus teacheth him otherwise, that there is one bodie of two cities or two common weales, by reason of friendship concluded: Bal. cons. 29 but for the better vnderstanding hereof it is to be no­ted that there be two kindes of societie or publike friendship: one which is tearmed [...], the o­ther which is named [...]. Suid. Thu­cyd. 1. Rhod. 11. an. le. 6. [...], is when the parties contracting league are by force of the league to haue the same friends, and the same ene­mies, which maner of societie was much vsed by the Romanes: the other is but as it were the moi­tie or halfe part of this, as namely when one of the league is to helpe the other when he suffereth in­iurie: but not when hee offereth iniurie for it is a good rule in the ciuil law, rei turpis societas nō intel­ligitur: l. 5. 7. vbi Bal. pro sor. Therfore he that couenanteth to defend a castell or farelet is not bound, if warre bee raised through his fault, to whome hee made the coue­nant: Alexand. 3. cons. 114. and Castrensis auoucheth, that this ought to be vnderstood of a necessarie, not of a volunta­rie warre: But this is cleare and certaine in this case, that he that is bound so to defend, is bound to defend by weapons: Deci. li. 59. de. reg. iur. & 3. cons. 117. and he that is bound in such case personally to helpe an other is much more bound to helpe him with money Alci. 3. con­si 2. yet that must be thought to be onely then required at his handes, when the other can not prouide for his owne necessities. Now it is to be considered, whe­ther [Page] eyther of the parties may depart from the league. And I thinke vpon iust occasion such a departure may bee made: Faedus non violatur si ab eo disceditur ob rationem iustam l. 14. 15 16. pro soc.: But this must not bee for a light cause: for light▪ causes are al­waies arising: and all contracts would bee most weake, if for a small and worthlesse cause it should be broken or not regarded. But a prince may safe­ly depart frō the league if some part of the league bee broken by the other partie: Cagnol. l. 41. Cod. de. trans. and leagues as all other contractes bee indiuidua Deci. Cons. 265. cep. 455. 461.: for there be alwaies exceptions vnderstoode in euery league as these for example; Nisi causa superueniat: nisi culpa accesserit eius cui promissio ista fit, & pactio foe­deris: rebus sic stantibus. Thus we haue spoken of warre and peace generally, now it remaineth to discourse of the particular circumstances of these two principall points and moments of a common weale.

3 Before warre be maintained by one prince a­gainst an other, it behooueth him that commen­ceth war to denounce the warre solemnly by am­bassadors, and by that meane to certifie him of his purpose. For this course is prescribed by the lawe of God Deut. 20. Ioseph. 5. anti­quitat. Aug. iudic. q. 49.. And it was practised by the Grecians, Barbarians, and most of all by the Romaines Aerod. lib. 5. Xenop. Ages. Diony. 2. Liui. 1.: Whereupon Cicero saith, Nullum bellum iustum ha­beri videtur nisi nuntiatum, nisi indictum, nisi repeti­tis rebus Cice. 1. de offi. n. c. 1. 23. q. 2.: Which saying is cited and auowched [Page 44] in the Canon law c. 1. 23. q. 2.. And this is likewise affirmed in the ciuill law. l. 24. de capt. And therefore it is held by the interpreters of the ciuill law, Proditoriè agit qui non indictum mouet bellum: Ias. Bald. l. 5. de iust. l. 4. c. de obs. p. And Varro reporteth, that iust warres did cease to bee waged in his time, because they ceased altogether to bee lawfully denounced Var. lib. 4. de ling. Lati.. For the auncient Romanes did not affoarde a triumph to anye, vnlesse the warre were solemnely proclaymed Sigon. de anti. iur. pro vin.: And Al­ciat accompteth this the law of nations Alcia. 14. de si. cor.. And because warre is a publike contention, if in pri­uate causes summons and citations be vsed, surely in vndertaking warre, denuntiation ought to bee vsed Bald. l. 12. de serui. vrb. praed.; for which cause the Romanes were in this point so precise, that they did often denounce war when they needed not; euen when the law of na­tions was apparantly violated by other nations, so that they might iustly haue enforced them, as the rule of the common law is to haue taken notice of their owne wrong. In this sort they proclaymed warre against the Senones who had slayne their ambassadors: against the Illyrians and Taren­tines, who had contumeliously abused them Liui. 12. 20.. And this is noted of them in the case of the Sa­guntines: Non statim ad arma procurrunt, dum prius more legitimo queri malunt: Flor. lib. 2. So Liuie reporteth of the Frenchmen; Erant qui extemplo Romam e­undum censerent, sed vicere seniores vt legati prius mitterentur questum iniurias, postulatumque vt pro [Page] iure gentium violato Fauij dederentur: Liui. lib. 5. Wherefore Xerxes doeth greatly inuey against the Graecians because they did not first aslay to end their cōtro­uersies without weapons: Herodot. l. 7 and for the same cause Ioab is iustly reproued in the scripture of the wise woman: 2. Sam. 20. neither was hee vnwise in this pointe that said: Omnia prius experiri verbis quam armis sa­pientem decet. Qui scis an quae iubeam sine vi faciat. Ter. in Eunuch. Yea euen Tullus a most warlike man is of this o­pinion: Quae verbis componi non possunt armis de­cernantur: Dionis. li. 3. So Theseus a notable Captaine saith in Euripides. Si oratione non persuadeo bellum laudo. Vade, dic Creonti: Theseus amanter repelit a te cada­uera: hic primus sermo: si nihil efficis, secundus, vt f) Eurip. in Supp. me armatum expectet. And so Theodorius said true­ly to Alaricus: Tunc ad arma cum locum apud aduer­sarium iustitia non potest inuenire: And againe, Quid opus homini lingua si causam manus agat arma­ta. Cassiod. 5. Var. 1. 7. Thus it is euident that by the lawe of nations warre should be denounced.

4 Somewhat must be spoken of truce, which is thus defined in the ciuill law: Induciae sunt cum in breue et in presens tempus conuenit, ne inuicem se lacessant: lib. 19. de capt. And Gellius maketh mention of a truce which was made for an houre onely: Gel. li. 1. c. 25. Vergill cal­leth truce pacem sequestrā, because it sequestreth as it were, and suspendeth war for a time. Varro tear­meth it, Ferias belli, warres holiday. Virgil. 11. Aenei. In that it is called sequestra pax, it is to bee noted that it is not [Page 45] simplie a peace. In the Cannon lawe it is called tregna: it is of this nature, that by it warre is not ended but deferred onely, and so it is middle be­twixt warre and warre euen as sequestration is middle inter duos altercantes betwixt two parties that are at variance. But peace properly so tear­med is of another nature, because it is perpetuall, and vnder the name of peace truce is not compre­hended, no though truce be concluded for a long time: as the Veientines made a truce during the space of an hundred yeares with the Romanes: afterward for fortie yeares, and after for twentie: as the Tuscanes had a truce first for thirtie yeares after for fortie, and then peace was concluded. Neyther is it so much as a league, as may appeare by Liuie: De foedere negatum: induciae in bienni­um datae Samnitibus: And so hee reporteth of the Tuscanes: Pacem faedusquè petierunt, inducias in tringinta annos impetrarunt. Liui. 1. 2. 4. 9. 10. So Plutarch repor­teth of Pelopidas, that hee woulde not conclude peace with his aduersary, but that he granted him truce Plut. in Pelop.. Ancharanus doth thus distinguish them there is a time of warre, a time of truce, a time of peace Anch. cons. 88.. And an other Ciuilian auoucheth truce to be more like to war then to peace Corn. 3. cons. 167.. And an o­ther saith fitly, Induciae non interrumpunt hostilitatē, sed actus hostiles: Aug. l. si vn vis. de pact. But this must be obserued in obseruing truce, that in time of truce aduantage may not be taken either in regard of the place, of the fight, or of other circumstances. Therefore [Page] Phillip may seeme to haue done vniustly and a­gainst the lawe of armes, who hauing obteyned q) Liui. lib. 31. truce for the burying of his dead, did in this time of truce conuey his armie into safer places. And the D. of Mompensier was likewise guiltie of this fault, who hauing couenanted to yeeld vp a force­let if helpe came not within one moneth, in the time of truce departed from the forcelet, hauing left it sufficiently fenced Guicciar. li. 2. And it is thought to bee against the lawe of truce to receiue soldiers at that time into a towne besieged: Com. Pij. 2. lib. 5. For it is an vsu­all clause in the concluding of truce: Nil nouari securitate pendente: Vital. tract. clau. So Scanderbege doth sharpely reprehend the Turkes, who hauing promised to yeelde themselues if ayde did not come within a certaine number of daies, do in the meane season repaire the breaches of their wals and munition: Scanderb. 8 Neither can Tissafernes bee excused from the violation of truce, who in that time did make himselfe more strong for warre. But Agesila­us is noted to haue done the contrarie: Corn. Nep. Agesil. Nei­ther can the acte of Belisarius bee iustified, who in the time of truce surprised certaine townes, out of which the Gothes departed, howbeit hee an­swered to this obiection, that he might well enter into such townes as the Gothes had left and wai­ued: but the Gothes did not waue them; for they departed out of these townes through penurie, & want of victuailes Procop. l. 2. de bel. Goth.: Now by the ciuill law hee that departeth out of a place, or casteth any thing [Page 46] away being inforced by necessitie cannot bee said to leaue that thing behind him pro derelicto l. 1. 7. pro derel. l. 8. de Ie. Rho.: Yet the common law may seeme to sway with Belisa­rius, which extendeth derelictum, both to that which is voluntarily forsaken 16. Eliz. 138 Dy.. And to that which is waiued and left by necessitie 29. E. 3. 29. 12. E. 4. 5.: yet it cleareth not Belisarius, his acte: for during the time of truce no warlike action should haue beene enter­prised: so that if the Gothes had left these townes voluntarily, and not by necessitie, this had not ex­empted him from doing apparant wrong.

5 Because safeconduct is a thing much vsed a­mongst nations in politique respect, & therefore is parcell of the law of nations, I may not omit or ouerpasse it. Safeconduct because it is in Latine fides publica, doth argue that it may not be granted regularly but of a publike person who is an abso­lute Monarch, or of some publike estate or com­mon weale; and in England it hath beene vsed to bee graunted by parliament, as appeareth by the statute of Magna charta: Omnes mercatores, nisi an­te prohibiti fuerunt, habeant saluum conductum exire, & venire in Angliam ad emendum & vendendum praeterquam in tempore guerrae: & si sint de terra con­tra nos guerrina, si mercatores nostri in patria illa sint salui, & salui sint illi in terra nostra. I mentio­ned before this worde (regularly) because by commission and speciall warrant hee that hath potestatem explicandi ardua: or hee that hath causae cognitionem, maye graunt and affoarde [Page] safeconduct for the better performance of his taske Decia. 3. [...]onsi 96.. But safeconduct is to be vnderstood large­ly, by equitie, and without cauils: and therefore if safeconduct be granted to one, to come safely to a place it is intended that he ought safely to depart, and hee that hath licence to passe safely may send safely Bar. li. 1. C. de nan. Alex. 2. cons. 46. 5. Alci. 4. 14.: and he to whom safeconductt is graun­ted for himselfe and his company, may bring with him in his company odious persons, as Iewes and infidels Alc. l. cons. 11. 25. Dec. cons. 51.: but fugitiues, reuolters, rebels and trai­tors he may not bring with him, for no law of na­tions nor benefit of common weale belongeth to l) 8. 38. de pae. such, reuolters or runnagates are by the ciuill law burnt aliue, or els hanged vpon a gibbet. Marcellus and Cato the Censorian did whip them and put them to death Plut. in Mar. & Cat.: Others in setting forth of their games and showes did cast them to beasts: others did lay them vnder Elephants to be trode & torne in peeces, others did with other extremitie worke their death Liui. 24. 26 Val. Maxi. 2. c. 7. Front. 4. c. 1. Appi. in bel. Hispan.: neither do I think that safeconduct may extend to men of another nation, then he is of, to whom safeconduct is granted. For example, the Fleminge, the Turke, the English are enemies to the Spaniard, if safeconduct be granted to the Fleming, he may not take Englishmen, or Turkes with him in his company. But safeconduct being granted to the husband must needs extend to the wife, and to such thinges as be necessarie to him ad bene esse Bal. 5. cons. 413.: And to such familie-seruauntes or retinue as to be agreeable and proportionable [Page 47] to his dignitie and estate Aug. l. 8. de in of. test.: for according to the rule of the ciuill Law, in personalissimis actibus in­separabiles personae includuntur Bal. 1. 3. de const. pri..

6 I will now speake of Captiues, and of the rightes that belong to them (for miserie needeth some solace) by the Law of Nations. A Captiue as the name importeth is he, who is taken in warre, and though he be borne of a captiue woman, yet is he free, vntill such time as he be seised into the handes, or to the vse of the Lord, and though he be so seised, yet it must needes be that he was borne free: for the rule is true: Quae iure gentium acquiruntur, ea non acquiruntur nisi vera interuene­rit apprehensio l. 3. de acqui. po. vbi Ias., otherwise he should possesse the treasure who possesseth the ground in which it is, yet he doth not possesse it, howbeit he knoweth of it, and therefore that rule is not in the Law of Nations true: Si quis habet id quod continet, habet id quod continetur: For in the Law of nations this generall maxime holdeth place: Vera et realia non ficta, et verbalia amat ius gentium: yet such a precise seisure is not heere ment that euery part of him that is taken should be touched, euen to the verie shirt of a man, as long as he that seiseth hath a will and power to seise: for he that toucheth a mans eare, is in the ciuill Law held to touch the whole man Alc. d. 41. d. l. 3. l. 21. de fur.. Some hold opinion that he is not a Captiue, vntill he be brought into the tents of his enemie l. 5. de capt. Alex: l. 1. de acquir. po. tt. 4. reg. 6., howsoeuer it be, it is plaine, that Captiues may not be put to death; as the prophet [Page] said to the king of Israel: An quos captiuos abdu­ceres, gladio tuo et arcu tuo eos percuteres? And though bloudie Pyrrhus desirous to kill Polyxena did pretend, that lex nulla capt [...] parcit aut poenam impedit: yet Agamemnon aunswered him well, quod non vetat lex hoc vetat fieri pudor Senec. in Tro.. To which purpose the other Seneca saith excellentlie: Au­gusta innocentia adlegem bonus esse, et latius officio­rum patet quàm iuris regula, multa exigit pietas, hu­manitas, liberalitas, iustitia, fides, quae omnia extra publicas tabulas sunt. The Scots therefore are greatlie to be commended, who as Buchanan re­porteth, though great daunger were imminent, yet did not slaie their prisoners Buchan. lib. 9.. Neither did the English euer (that I reade) vnlesse it were once in that notable fight, in which they did vt­terlie destroy the French dominion, who hauing more prisoners then themselues were, and fin­ding their captiues to tende to conspiracie and mutinie, hauing singled the most noble, did kill the baser prisoners Com. Pi. 2. lib. 6. Polydor. 17.. But doubtles the Turkes crueltie was barbarous, who did kill fowre thou­sand prisoners, that they might not be a burden or charge vnto him Ior. lib. 3.. And this fault was com­mitted by Henry the second king of Fraunce Nat. Com. lib. 8., who did cause certaine obstinate prisoners, & perseue­ring in fight to be hanged: a kind of death vnfit for Captiues, who are not so to be punished without great and vrgent cause, because it is a point of immanitie, and crueltie, bitterlie to rage [Page 48] against them which defende their Prince, and their Countrie.

A Captiue one may be, and yet not a bond­slaue: for he can not be a bondslaue, vnlesse his Lord will haue him so. There was a ceremonie therefore vsed to make him bondslaue, which was called Nexus; And it seemeth that the Praetor had some authoritie in this matter: which I ground onelie vpon the last will and militarie testament of a Romane, ingrauen in stone as Sigonius repor­teth, who would haue his villaines manumitted by the Praetor Car. Sigo. in vit. et trinu. ph.: and sithence eiusdem potestatis est ligare & soluere, I am of opinion therefore, that he had some intermedling in the making of them villeines. But in the making of them villeines, chaines doubtles were vsed: and therefore Ves­pasian when he had taken Iosephus prisoner, would needes haue his gyues to be broken, not to be loosed, that he might seeme neuer to haue been a bondslaue Ioseph. lib. 5. de bel. Iud.. And whereas the Law saith, that such thinges as are taken of enemies capi­entium fiunt l. 5. de ac. re. do., it is not meant nolentium: there­fore though the power of him that taketh make a captiue, yet his will must make a bondslaue. But surelie the state of captiues, if they become bond­slaues is verie miserable: for they are as it were deiected from their nature, and are in accompt of Law tourned into beastes: And wheras before they were accompted in Law persons now they [Page] are accompted thinges ad leg. A­quit. 209. Bald. 2. cons. 358., and therefore of the Graecians they are generally called Samata bodies. But I do not think this seruitude to be contra na­turam: For Aquinas his distinction is not to be re­prooued, that seruitus is á natura, though not se­cundum primam intentionem, by which we are all made free: yet ex secunda by which God doth punish whom it pleaseth him: but such bond­slaues must not be vsed like beastes, but like men: wherefore the speech of some is intollerable ( Se­neca reporteth it) who did affirme domino in ser­uum nihil non licere, pictori nihil non pingere Sen. 1. contr. 5.. And Plato writeth not well when he saith, that bond­slauesl) Plat. lib. 6. de leg.. are to be handled roughlie. Aristotle more trulie, that they ought to be handled mildlie Arist. 1. polit.. Cicero more iustilie, Meminerimus et aduersus infi­mos iustitiam esse seruandum, Macrobius more mo­destlie, Dominum patremfamilias, seruos familiares appellauerunt nostri maiores omnem seruis contume­liam detrahentes Macrob. 1. saturnal. 11.. Clemens Alexandrinus more compassionatelie: Famulis vtendum tanqum nobis ipsis: sunt enim homines tanquam nos Cle. Alex. [...]lt. paed.. Nunquid canes saginabuntur, homines pascentur male? said Diogenes. In Athens there was a Law de iniuria seruili Athenae. lib. 6.. Amongest the other Graecians there was a Law, that bondslaues might depart from their cruell maisters. In some common weales they had licence to purchase landes, and goodes, as Athe­naeus q) Pollu. 7. Plat. de su­perst. reporteth, according to the Romane Law, as appeareth by Seneca, Dominus praestare debet seruo [Page 49] cibarium, vestiarium: est enim seruus perpetuus mer­cenarius Senec. lib. 3. de benefic..

7 Enough of Captiues: Now let vs not be vnmindfull of Hostages, which are in state not far distant from Captiues: Therefore Quinctius did cause the sonne of Phillip, and the sonne of Nabis to be led before his triumphall chariot, though they were but Hostages Oros. lib. 4. c. 20. Liui. 34.. And the Parthians were wont to saie: obsidaetus nihil aliud est, quàm seruitus Ioseph. lib. 18. antiqu.. By the Ciuill Law they can not make a testament no more then others, which are in the enemies power l. 1 1. qu. test. fa. po.. The definition of Hostages is thus deli­uered in the ciuill Law: Obsides sunt qui fidei pub­licae seruandae causa, principi, aut duci exercitus dan­tur Bal. l. 2. c. de pa. qui fidi.. To whom this daunger is incident by the Law of Nations; That if promise be not kept to him whose Hostages they be, they may presentlie be put to death: As may appeare by the exam­ples of the Thessalians Plut. de cla. mu., the Romanes Liui. 2. Di­ony. 6., the Gothes Procop. lib. 1 de bel. Goth. [...], the Dacians Bodin. 1. de rep. c. 10., the English Polyd. lib. 5. 7. 15..

8 I may not omit to speak somewhat of the Law, and lawfull vse of Stratagems, which haue been so much fauoured and practized in aunci­ent times, that it hath been generallie and per­emptorilie affirmed: Nullo discrimine virtutis ac doli prosperi omnes laudari debent bellorum euentus Ammian. Marc. lib. 17.. And S. Augustine his authoritie is vrged in the Canon Law: Cum iustum bellum susceperis, vtrum aperta pugna, vtrum insidijs vincas nihil ad iusti­tiam interest Aug. Ios. q. 10. c. 2. 23. q. 2.: To which agreeth the saying of [Page] the Poet: Dolus an virtus quis in hoste requirat? And counsaile hath been giuen by Oracle, that men must not onely fight by warlike instruments, but by nimblenes of witte Pausan. lib. 4.. And Brasidas saith in Thucydides, that the theft of warre is most honest. And Silius censuring Fabius vsing such cunning plots saith: Exin virtuti placuit dolus Sili. lib. 15.. But yet great regard is to be had, that all kind of deceit and fraude may not be vsed & admitted: because Law must be vsed in dealing with enemies. But the Law admitteth not dolum malum, being the arte boni et aequi. And in concluding any matter with enemies, all captious and scrupulous disputati­ons and interpretations are to be auoided: for as Cicero saith: Leguleiorum est syllabas & apices aucu­pari, (non militaris simphicitatis Cicer. 1. de ora. l. 25. de prob..) Wherefore Pe­ricles dealt vniustly, who hauing couenanted with his enemies, that they should be safe si ferrum de­ponerent, did afterward kill them, because they had about their harneys certaine yron buttons: for this word ( ferrum) was to be vnderstood of wea­pons: as appeareth by that saying of Pyrrhus in Ennius: Ferro non auro vitam cernamus vtri (que). And h) Fronti. lib. 4. c. 7. they of Plataea were vniust, who hauing promised to restore certain prisoners, did first kill them, and then deliuer them Thucyd. lib. 2.: as if the carcasses of men were captiues, and a dead man were a man. Vniust was Alexander, who hauing promised to certaine per­sons a safe departure out of the citie, let them go safe out of the citie, but hauing gone a little of [Page 50] their way, he caused them to be slaine Diod. lib. 17. Polyen. 4.. The Sam­nites were vniust, who hauing promised their ene­mies that they would take away but a stone all a­long the wall, did take away the foundation-stones & so destroied the whole wall Polyen. 6.. And that Romane can not be excused from blame, who when Antio­chus had promised him that he should haue halfe of his shippes, caused all his Nauie to be cut in the middest Valer. Max. lib. 7. c. 3.. And the craft of the people of Lacros is to be reprooued, who hauing promised perpe­tuall friendship whilest they should treade vpon that earth, and whilest they should carie on their shoul­ders their heades, did cast out of their shoes the earth that they had put into them, and remooued from their shoulders the heades of garlike which they had priuilie laied on them, and then they le­uied warre Polyb. lib. 6.. For as Cicero, though a pagane saith diuinely: Sēper in fide quid senseris, non quid dixeris cogitandum Cicer. 1. et 3. de offic.. Neither is it materiall that some ex­amples, and namely these abouesaid may be vrged for the defence of such sinister dealing, for these few examples make not the Law of nations. Nei­ther in this treatise do we imagine what hath been done of some men, of some nations, in some cases, vpon some occasions. But what hath been done of the most part of the best men of all Nations, vpon grounded aduise, and free election. And surely di­uers such great & eminent parsonages haue some­time vsed such stratagems in good sort, and with­out breach of national iustice. Iudith that wise and [Page] valiant woman, for her plot intended and practi­zed against Olofernes is commended of diuers, yea euen of Diuines: of Clemens Alexandrinus Clemens stromat., of Ambrose Amb. 3. de offic., of Ierom Hieron. apo. Ru., of Augustine Aug. de te. 228. 229., of other. So Augustus Cesar did promise to Cleopatra what she would, if she would effect the death of An­tonius Dio cassi. lib. 51.. Such snares were laid against Timoleon, against Eumenes, against Lucullus by Mithridates, as Plutarch reporteth. They were assayed by Me­tellus and Marius, and perfourmed and executed by Sylla against Iugurtha, as Salust auoucheth. They were compassed of the Aetolians against Nabis Paus. lib. 8.. And attempted of Perseus against Eume­nes Liui. lib. 42.. And likewise of Decebalus the king of Dacia against Traian Zona. Dio. 68.. They were procured latelie of Tiruultius against Sforza Duke of Millaine Iovi. lib. 11.. And in time past perfourmed by Totilas against the Gouernor of Perusia Procop. lib▪ 3. de bel. Goth▪. And in this age of Sely­mus the Turkish Emperour, against king Alado­lus Ioui. lib. 17.. And heretofore of a certaine Triballian a­gainst Amurathes Catachond. lib. 1.. Manie such cunning practizes were deuised and executed by Annibal that admi­rable souldier, in whom the two seueral natures of the Foxe and the Lion did constell and accorde: but he was fully countermated by the Romanes, of whom therefore he said: video Romanos suos ha­bere Annibales.

I must conclude with shewing the vniuersall and absolute right, aduantage, libertie, power, and prerogatiue of the Conquerour. The que­stion [Page 51] hath been heretofore, whether all these things that anie waie belong to the people sub­dued may be claimed by the Victorer, or onelie such things Quae pede praemit, manu tenet. It hath beene agreede, that when Alexander did sur­prise Thebes, he was an vniuersall & no particular possessor of all their rightes and inheritances Bald. 2. Consi. 202.: And whereas the Chalcedonians being dange­rously assaulted by the armie of Alcibiades did pri­uily and closely conuey their goods for safetie vn­to the Bithinians, Alcibiades hauing conquered them, made earnest demand of these goods, to be deliuered him by the Bithinians Xenoph. 1. Graec.: And the Ro­manes did demand the bodies of certaine kinges Demetrius and Mithridates, being ouercome and put to flight, of them to whome they fled Liui. 7. 22. Plut. in Luc. App. in Mithr.: but without all doubt these places, and the things of these places which the conquering armie doth possesse, doe iustly belong vnto the conqueror, & therefore that is said to be the conquerors territo­rie, vbi exercitus eius terret Panor. 2. cons. 62. Bald. lib. 3. de. off. praes.: And Alexander might well laugh at Darius, who in the articles of peace would haue yeelded these things to Alexan­der, which he did alreadie possesse Curt. lib. 4. & 5.: And Hanni­ball did disdaine the Romane simplicitie (though they did it of great pollicie) in selling that ground which hee did possesse with his armie Liui. lib. 26.: And Brasidas the Lacedemonian saide well, that that was not the Boetians land, which the Lacedemo­nian armie had seysed: Thucyd. li. 4 And when a Monarche [Page] or free citie yeeldeth, al the members and inferior parts doe yeeld implicatiue: wherefore Baldus saith well, A submissione capitis sequitur submissio mēbro­rū & rerū, quia seruiēte capite membra seruire necesse est. And it is certain, that the ornaments & riches of the people subdued they may take away iure imperatorio, as Cicero saith: Cicer. Verr. 3. So Camillus a most strict obseruer of the lawe of armes did take the i­mage of Iuno from Veios Liui. lib. 4.: Marcellus caried away many things from Siracuse, Plut. in Marc. and Mummius con­ueied great store of Church-ornaments out of A­chaia Zonar.: And Sir Frauncis Drake that sea-flowre of England did (as I haue heard) bring home with him the great golden statue of S. Christopher which hee tooke in one of the Churches of Porto Rico when hee sacked it. And though there bee somewhat in scripture Dani. c. 5. spoken against the spoy­lers of the temple of Ierusalem, the cause was for that God had chosen that temple to be his house and the spoilers of it did it in reproach of his ma­iestie. But it is plaine that cities surprised may bee sacked: cities yeelded vpon condition may not Liui. lib. 37.: and cities surprised may bee sold, and the walles may be destroied, and the cities themselues Plut. lib. 4.. The wals of Athens were destroyed by the Spartanes Thucyd. li. 1.. The walles of Sparta by the Achaeans Liui. li. 38.: the walles of Ierusalem by the commandement of Pompey Tacit lib. 5: part of the walles of Giscala by Titus Ioseph. 4. [...]elli. Iud.: the walles of Argentina by Attila, which hee would needes haue afterward called Polyodopolis, as now hauing [Page 52] many waies to come vnto it. Bon. sin. 1. vng. 2 Fredericke was brought in triumph through the walls of Millaine yeelded vnto him Sigon. lib. 13. de re. It.: Alponsus through the walles of Naples: (as Guicciardine reporteth) Iulius the Pope of Rome through the walles of Mirandula: was it because the gates were throwne downe? or because such a holy man wold not make a pro­phane passage through the gates, but through the walles which are commonly consecrated? or be­cause his ordinarie course is to enter by the win­dow, his extraordinarie at the wall? or because he wanted the Aspe and the Basiliske to walke vpon, he thought good for that present to trample vpon stone and morter? as to generall subuersion of ci­ties after a victorie obtayned, it is manifest that Thebes was destroyed by the generall concord of all the Grecians, because they tooke part with the Persians Diod. li. 15.. Liuie maketh mention of Alba, Pome­tia, Corbio, Cortuosa, Contenebra, Satricum, Anti­patria, Phaleria, and others, which were so destroi­ed Liuie. l. 1. 2. 3. 6. 7. 24. 31. 32.: Carthage, had the same fortune, which is said to haue suffered the plough, a ceremony vsed of the Romanes in razing of the foundations of a ci­tie conquered l. 21. qui▪ mo. vs. am.: the same fortune had Ierusalem c. 7. dist 76. 1. Mich. 3., according to the prophesie of Micheas: Sion vt ager arabitur l.

The eight Chapter.
That in the lawes and constitutions touching Citties, corporations, liberties, franchises and immunities, and the good gouernment and administration of shem, all nations haue agreed.

COrporations in the whole course and constitution of them doe ve­rie much resemble the naturall bodie of man: for as there bee in it great diuersitie of partes, so is there likewise great distinction in cities and corporations, of misteries & degrees. In Egipt there were in their seuerall corporations diuers sorts and callings of people; Kings, Priests, Warriors, and Workemen: which last kind was subdiuided into foure members, Shipmen, Artifi­cers, Husbandmen, and Shepheards, Arist. lib. 7. polit. c. 10. Herod. lib. 2. histor.. And as a naturall bodie doth consist of things bodily, and of a soule, which is vnbodilie, so that it consisteth of thinges meerely opposite. So likewise a citie or corporation consisteth of multitude and vnitie, whereof multitude is as the bodie, vnitie as the soule, both different in nature. That multitude is as the bodie of a Cittie needeth no great proofe: Yet heare thereof Florus: Cum populus Romanus, Etruscos, Latinos, Sabinosque miscuerit, & vnum ex omnibus sanguinem ducat, corpus fecit ex membris, et [Page 53] ex omnibus vnus est Florus. l. 3. c. 18.. Heare the opinion of the Stoicks, comparing the world to a corporation. Ciuitas totius mundi vna est, & omnes homines popu­lares, municipesquè & veluti armentum vnum com­pascuo in agro compascens Cice. li. 3. de fi. Plut. de vi. Alex.: Heare also Seneca. Ho­mo homini in maiore ciuitate ciuis est, & in adiutori­um mutum creatus Senec. 1. & 2. de ira.: and that vnitie is the forme and as it were the soule of a corporation may di­uersely appeare Florus saith excellently (for he ei­ther could not or would not write but excellent­ly) Augustus Caesar sapientia sua atque solertia per­culsum vndique et perturbatū ordinauit imperij cor­pus. Quod it a nunquam haud dubtè coire & cōsentire potuisset, nisi vnius praesidis nutu quasi anima, & mente regeretur. Florus. lib. 4. c. 3. And Seneca saith wittily: Socie­tas haec nostra lapidum fornicationi simillima, casurae nisi inuicem obstarent & sustinerent se lapides; Sene. epist. 96. This our society is like vnto an arche of stones, which would soone fall if one stone did not hinder and beare vp ano­ther. S. Ambrose diuinly: Lex naturae ad omnem nos stringit charitatem, vt alter alteri tanquam vnius par­tes corporis deferamus. And the saying of Cicero, though an heathen is not heathenish. Spurca eo­rum sententia qui ad se omnia referunt Cice. lib. 7 ad Attic. ep. 2.. And both he and S. Ierom Hieron. ep. 24. doe condemne certaine Philo­sophers, who whilest they thinke it sufficient to be without all kinde of vniustice, and bend them­selues wholly to that, that they may not hurt any man, yet offend greatly in this, that they doe not seeke and endeuoure to profit other men, but for­sake [Page] sake that part of iustice, whilest they follow the o­ther: from which fault all the Rhetoricke in the world cannot exempt the cloistered Monkes and couchant Friers of the Romish liturgy: Claudian speaketh aptly of this matter Claudi. 4. cons. Honor.:

Nonne vides operum quî se pulcherrimus ipse,
Mundus amore ligat.

Thus it is euident, that a multitude lawfully & for a politike end assembled is the matter of a cor­poration, vnitie the forme. Likewise as a naturall bodie hath his diseases, so hath the bodie politike. Wherfore Liuie his comparison is incomparable. Nulla magna ciuitas diu quiescere potest: si foris ho­stem non habet, domi inuenit, vt praeualida corpora ab externis causis tuta videntur: sed suis ipsa viribus o­nerantur Liui. li 30. And againe, Discordia ordinum est ve­nenum vrbis huius Liui. lib. 3.: yet in some things the bodie naturall and a citie or corporation do differre: for the naturall bodie is transitorie and mortall: but a bodie politicke dieth not as it is shewed by M. Townsend in the Mayor of Norwitches case. The comminaltie is the substance of a corporation: and of them dependeth all the inheritance: for the Mayor and the Sheriffes may die, and be chaunged, but so can not the comminaltie 21. E. 4. 7. 12 27. 67. Mai. de Norwich. c. per Townes.: which is elegantly auouched by Liuie speaking in the person of Scipio that wor­thy man: Si ego morerer mecum expiratura respub. mecum casurum imperiū populi Romani esset? ne istud [Page 54] Iupiter optimus maximus sinat vrbem auspicat [...] Dijs authoribus in aeternū conditam, fragili huic & mortali corpori aequalem esse: Flaminio, Paulo, Graccho, Post­humio Albino, M. Marcello, T. Quinctio. C. Fuluio, Scipionibus meis, tot, tam praeclaris imperatoribus vno bello absumptis, superstes est populus Romanus eritque mille alijs nunc ferro, nunc morbo morientibus Lui. li. 28.. And Tacitus speaketh of this matter pithily though shortly: Principes mortales, aeternae resp. Tacit. an­nal. 3. And there is an other difference taken in the said case of the Mayor of Norwitch: for a man restrayning the hands of an other mans naturall bodie, doeth re­streigne his bodie, but if one do imprison the She­riffes of a citie, the comminalty is not imprisoned. By this comparison the nature of a politike bodie may sufficiently appeare. Now I will speake of the incorporating and enfraunchising of citizens which hath beene very auncient, as may appeare by Tacitus. Conditor nostri Romulus tantum sapien­tia valuit, vt plerosque populos eódem die hostes, dein ci­ues habuerit: and he sheweth it more particularly, Neque ignoro Iulios Alba, Cornucanos Camerio, Por­tios Tusculo, & ne vetera scrutemur, Lucania Etru­riaque, & omni Italia in senatum accitos. And he gi­ueth a good reason wherefore it should be so: mo­ribus, artibus, affinitatibus nostris mixti aurū & opes suas inferant potiùs quàm separati habeant: condem­ning the Lacedemonians & Athenians, who vsed it not. Quid aliud exitio Lacedaemoniis et Atheniēsibus fuit quā quā armis pollerēt, nisi qd victos ꝓ alienigenis [Page] arcebant Tacit. lib. 11. annal.: Amongst the Romanes at the first none were admitted into their citie, but such as did inhabite in that part of Italie, which was cal­led Latiū: afterwarde it was imparted to the other people of Italie, such as dwelt beyond the riuer Poe, and the Alpes, and the sea. Claudius Caesar be­stowed the freedome of the citie vpon many bar­barous nations: and vnder these Emperours which were Spaniardes, Thracians, Affricans by little & little whole prouinces, yea and the whole Romane empire was endowed with the freedom and liberties of the citie: whereupon that speech was vttered, Romanus vbicunque vicit, habitat: and whereas at the first all nations beside the Grecians were accompted Barbarians, yea euen the Ro­manes, who afterward were Lords of all, and be­ing Lords did exempt themselues and other nati­ons which they had conquered frō such reproch, and then they onely were noted for barbarous who liued not vnder the Romane Empire: Herodian. Sparti. Eutrop. wherefore Rhenus was said to haue two bankes, the furthermost of which was allotted to the Bar­barians, the nearer to the Romanes, according to the saying of Claudian:

O quoties doluit Rhenus, qua barbarus ibat.
Quod te non geminis frueretur iudice ripis.

And that which Tacitus saith, that the Romanes did grant vnto the Rhemenses, the Lingones, the Bituriges, the Meldinenses, the Xantones, & the [Page 55] Hedui free people of Fraunce, the liberties & free vse of their citie ( the suffrage & giuing voice at the election of Magistrates and Officers onelie excepted and foreprised) it is more plainlie and vnderstan­dinglie opened by Liuie in these wordes: Iam indemorem Romanis colendi socios, ex quibus alios in ciuitatem at (que) aequum ius accepissent, alios in ea for­tuna haberent, vt sotij este quàm ciues mallent Liui. lib. 26.. Though Augustus Caesar at the first blossoming of the Romane Empire did make some scruple to enfraunchise straungers, and to admit them into the Citie of Rome: Neither would he bestow the liberties vpon a Frenchman, though earnestlie re­quested by his Empresse Liuia, whom he dearelie loued, disallowing the act of C. Caesar his adop­tiue father, who enfraunchised a whole legion of his French soldiers, and reprooued likewise M. Antonius for selling the liberties of the citie vnto the Sicilians for money Tranquil. in vit. August.. Yet his posteritie was not so precise, but did abundantlie admit straun­gers: For Antonius pius did enfraunchise all that were subiect to the citie of Rome, that Rome might be the common countrie of all Nations L. in orbe de statu ho. ff., imita­ting perhaps Alexander magnus, who accompted the whole world a common Citie, and his paui­lion l) Rom. ad municip. ff. the tower of the citie Plut. in Alex.. And Seuerus did graunt to the citizens of Alexandria, that they might be Senators of Rome, and that other Aegyp­tians should not be free of the citie of Rome, vn­lesse they were before free men of Alexandria. [Page] Plin. lib. 10. epist. The Heluetians did bestow the liberties of their citie vpon Lewis the eleuenth, and other kinges of Fraunce Bodin. lib. 1. de rep. c. 6.. And Artaxerxes the king of the Persi­ans did graunt such liberties to the whole familie of the Pelopidae Plut. in pelopi.. So the Athenians did make free of their citie Euagoras king of Cyprus, Dionysius the tyran of Sicelie, Antigonus and Demetrius the kinges of Asia, yea euen all the Rhodians Liuius: which the Rhodians requited with like curtesie, which was nothing else but a comburgeosie, such as Bo­dinus Bodin. vbi supr. reporteth to haue been made betwixt them of Valoys, and certaine towneships of the Helueti­ans: Betwixt the men of Berne, and them of Fri­burge: Betwixt them of Geneua, & them of Berne. The nature of which comburgeosie is, that there should be mutuall communitie of their cities, and mutuall league of friendship betwixt them; And if any of these so leagued in societie should for­sake their citie, and come to the citie of them with whom they were in league, they should be ipso facto Citizens without any speciall enfraunchise­ment, enroulment, cooptation, or any other cir­cumstance: before which time they were not sub­iect to the commaunde and Lawes of that ci­tie, but were onelie Ciues honorarij, as Hercules and Alexander magnus were of Corinth. Such a league of societie as seemeth by the yeare booke to haue been contracted betwixt the Citizens of Lincolne, and them of the towne of Derbie, that they of Lincolne should be quite from murage, [Page 56] pontage, custome, and tolle, within the village of Derbie, for all kind of merchandize 48. E. 3. 17.. This was the difference betwixt veri and honorarij ciues: the former were subiect to the Lawes, orders, and charges of the citie: the other were not. Plutarch Plut. in So­lon. wondreth at Solon, in that he made a Law, that all straungers should be barred from the liberties of the citie of Athens, except it were such as were in exile: but indeed he perceiued not Solons mea­ning, being a man of deeper reach then Plutarch, as also was Polybius, and Thucydides, and Dionysius, of Halicarnassus amongest the Graecians his coun­trymen, whom notwithstanding in learning, wit, and eloquence he exceeded: for Solon his purpose was in the making of that Law, that none should enioy the liberties of the citie, but such as should be bound and subiect to the Lawes of the Citie. And there was likewise an other difference be­twixt veri and honorarij Ciues: for they which were veri ciues did loose the liberties of the citie of Rome, whensoeuer they did purchase the free­dome of any other citie: Which may appeare by this, that though Pomponius Atticus being borne in the citie of Rome, was a citizen of Rome, and more then that, beeing a Senators sonne, was eques Romanus, who was therefore called Atti­cus, because hee had the Athenians in such reue­rence and estimation (a man of great byrth: for three Emperours doe referre their originall to him, Senec. in epist. ad Lucil.) yet this man could not bee made a [Page] citizen of Athens, least (as Cornelius Nepos repor­teth the plain truth Senec. in epist. ad Lucil.) he should loose his freedom of the citie of Rome. But as to them which were honorarij ciues, if they were enfraunchised of a w) Cornel. Nep. in vit. Attic. hundred cities, yet they could not loose their free­dome of any. In England not Cities onelie ad­mit others to their liberties, but verie Societies of Students; as namelie the houses of Court, and to mine owne knowledge, the worthie societie of Graies Inne, to which be admitted such a number of excellent noble men, great diuines, surpassing gentlemen, whereof some haue sued and been desirous to be admitted: other some haue rather been called, then ordinarilie consorted, for their preeminence and worth, according to the rule of Salomon: As is the fining pot for siluer, and the fur­nace for gold, so is euery man according to his digni­tie. I pray God this fining pot may still continue her siluer of Learning and Law. I beseech him likewise that this furnace of gold, may still seuer the gold from the drosse, that is religion and loialtie, from paganisme and papisme: which hitherto, the Lord be praised, it hath done. But to retourne to my purpose of handling the nature and properties of Cities and Corporations, Though in the gene­raltie of admittance all common weales haue ac­corded, yet in the speciall maner of admittance they haue dissented and varied: For in Athens they could not bestow their fraunchise vpon anie without the suffrage and voice of a thousand citi­zens [Page 57] at the least Demosth. contr. Eub [...] ­lid.. But in such places and regions, which by reason of the barrennes of the soyle, or by reason of the distemperature of the ayre, are not verie well habitable, not onelie the originarie inhabitants, but euen straungers and aliens are for­bidden by the Rulers of the places to depart out of them: As namelie in Moscouia Sigis. in hist. Moscho., Tartaria, and Aethiopia Francisc. Aluares. in hist. Aethiop.: But amongest the Venetians and Rha­gusians none can be admitted to their cities, vn­lesse it be for a great summe of money, or some principall desert. But now sithence we haue spo­ken sufficientlie of Corporations in generall, let vs examine the first foundation and beginning of guildes and fraternities, which as Corporations do support the good estate of a Realme; so they do preserue the good estate of Corporations. These Fraternities are deriued of the greeke word [...], which is to be interpreted a well, or pit: for in drinking at one pit or well societie was at the first contracted: thence is deriued [...] fraterni­tie. So likewise Pagi, towneships, are deriued of the Doricke word [...], which signifieth a foun­taine, and in the Atticall dialect is [...]. By the meeting together at the first at one water or foun­taine grew loue betwixt man and wife, then betwixt brethren and sisters, then betwixt vn­cles and nephewes, then grew affinitie: All which would haue been colde, if there had not beene corporations, colleges, guildes, fraterni­ties, and societies crected and established. By [Page] the common Law, no Corporations can be made but by the king, yet his highnes may depute this authoritie to an other, for so it commeth originally from the king: howsoeuer Mast. Ke­ble his opinion is, that a Corporation must be made by the kinges expresse and immediate wordes 2. H. 7. 13.. But 22. Edwardi 4. and 20. Hen. 7. the opinion of Read is to the contrarie 22. E. 4. Graunts 30. 20. H. 7. 7., and both Mast. Fitzherbert, and Mast. Brooke Br. Patents 44. abridging the case, are in this contrarie to Mast. Keble: f) Fitzherb. Graunts 36. And so is the opinion of Choke and Brian, that if before the dissolution of Abbeys, the king had licenced one to make a Chaunterie for a chaunterie Priest, and to giue vnto him and his successors certaine land, this had been a good Corporation 21. E. 4. 56.. But to all vnlawfull Gorporati­ons, all giftes, grauntes, fines, and feoffements are made voide by the Satute of 23. Hen. 8. cap. 10. The first Lawmakers and founders of com­mon weales, at the first did accompt no foun­dation more stable to support a common weale then societies and fraternities. For Numa Pom­pilius the king of the Romanes did ordeine cer­taine guildes of workmen and merchants, and did binde them by solemne sacrifices and feasts, which might be at certaine set daies celebrated to preserue loue, and friendship amongest the people, that they might with more ioy and com­fort proceede in their priuate and publike af­faires Plut. in Num. Dio­nys. Halicar. lib. 2.: And this he seemeth to haue done by [Page 58] Solons example, who made fraternities of all sorts of men, and permitted them to make Lawes tou­ching their fraternities, so they were not contra­rie to the Law publikely receiued Plut. in Solon.. But Lycur­gus did not prescribe certaine feastes to be obser­ued, but continuall meetings and comessations, that friendship might not at any time be inter­mitted. In other cities of Greece, societies called [...], and throughout all Italie sodalitia were ob­serued. To this end and purpose the Cretensians of all ages, orders, and sexe, did banquet toge­ther in publike place Arist. in po­lit.. And in the famous Citie of London, there is annuall and solemne obserua­tion of their feastes in euery guild, which mighti­lie preserueth the wealth, tranquilitie, and flori­shing estate of that citie. Neither is this custome dissonant from God his owne ordinance in the Iewish common weale, who appointed certaine feastes and sacrifices to be obserued of the Iewes, that religion towarde God, and friendship a­mongest men might bee maintained Numer. 1. Leuit. 23.. But as to the making of priuate Lawes by such guildes and fraternities, Solons Law abouesaid hath been obserued almost of all common weales: But the Statute of 15. Henr. 6. giueth somewhat a larger scope to guildes and fraternities in these wordes: Guildes, and fiaternities, and companies incorporate shall not make, nor vse any ordinance, which may be to the diminution of the Kinges fraunchise, or of other fraunchises, or against the common profit of the people, [Page] vnlesse it be first discussed by the Iustices of peace, or the chiefe gouernors of the village, and before them entred of recorde &c. But when I speake of colledges, companies, meetings, feastinges, and as­semblies, I doe with the maine force of my hart exclude vnlawfull societies, conuenticles, and secreat meetinges of male-contents, phantasti­call, and priuate humored persons: But to col­ledges, fraternities, and companies erected and created by Law, I see no reason but that landes and yearelie maintenance may be giuen and al­lowed vnto them: yet not without the Prin­ces permission, who for some speciall causes fore-seene may stoppe and hinder such donati­ons: And therefore wiselie by diuers Statutes in this Realme is remedie prouided against this, and a writ of Ad quod damnum deuised Statut. de Religios. 18. E. 3. pro clero. cap. 3. 15. R. 2. cap. 5.. An­tonius the Emperour did first of all permit lega­cies and donations to bee made to colledges and companies, excepting the colleges of the Iewes, whom notwithstanding hee suffered to meete together, and to haue their synagoges for religious vse L. 1. de Iud. C.. Alexander magnus did be­stowe vppon his citie Alexandria, built at the seauen-folde mouth of Nilus, manie great pri­uiledges, fraunchises, and immunities Ioseph. lib. 3. bel. Iud.. So Frauncis the first, being the founder of that citie which standeth at the mouth of Sequana, gaue great immunitie to such as should inhabite it Bodin. lib. 1. de republ. c. 6.. And so diuerse of our kinges of England haue [Page 59] bestowed many liberties fraunchises and benefits vpon seuerall citties, which M. Camden hath verie profitably & very learnedly amongst other things in their due places set downe, whome I need not further commende to my country-men of Eng­land, to whom by his great worth and desert he is more deare and precious.

Quàm si illum Veneris commendet epistola Marti.

But I will further proceed in shewing the great prerogatiues graunted by princes and other su­preame estates to citties and corporations: In all ages and all common weales cities and corpo­rations haue not only had their courts, folkemote, and the like, but euen common councels (as they are commonly tearmed) and publike meetinges for the generall good of the corporations. For as great profite doth arise by such societies and mee­tinges: so nothing doth more debilitate and wea­ken the state of a common weale then the taking away of such Councels: therefore the Romanes, when they had ouercome Macedonia, because they would make the estate of it weake and im­puissant, they did vtterly forbidde all common Councels, and publike meetinges: so they did when they had ouercome the Achaeans: Memmius the Consull (saith Liuie) did dissolue all the common councels of the particular nations of Achaia, and of the Phocensians and Baeotians, and the other partes of Greece Liui. lib. 35: But when these regions and prouinces were sufficiently quieted and soundly knit to the [Page] bodie of the Romane Empire: then (as Strabo re­porteth) their auncient Councels were restored vnto them: but the Romanes did neuer alter the liberties of any citie vnlesse they were abused to their hurt, as appereth by the words of Florus: Cri­tolaus causa belli, qui libertate a Romanis data aduer­sus ipsos vsus est Flor. lib. 2.: Neither were the liberties of the Aetolians impeached vntill they reuolted to Anti­ochus, as Iustin sheweth: Offensi Aetóli, quód non ex arbitrio eorum Macedonia quoque adempta Phillippo, & data sibi in praemium belli esset, Antiochum in Ro­mana bella impellunt Iustin. lib. 3.. And such abuses many times happen in cities: for as Liuie that excellent writer, in wit diligence and history, matched by none: in wisedome and grauitie by very few, in pietie ouercome onely of one of the heathens, 1) Varro. 2) Cicero. and but of one in eloquence well auoucheth: Nulla est ciuitas quae non et improbos ciues aliquādo, u) Liui. lib. 45. & imperitam multitudinem semper habeat: but as they did fauour lawfull and conuenient coun­cels, so vnlawfull and secrete conuenticles they did greatly abhorre: wherefore the nocturnall meeting at the sacrifice of Bacchus was iustly ab­iudicated and disanulled by the whole Senate: & the conuēticle of the black-religioned Brownists by the L. Archbishop of Canterburie, & the high Commissioners, who though a greater number of them were women & pretended themselues to be harmeles, & vnapt to do hurt; yet as Liuie saith; A nullo non genere summum periculum est, si coetus [Page 60] & consilia et secret as consultationes esse sinas Liui. lib. 34.: And this ought especially to be feared and preuented, whē contumelious contumacy is vailed with the shadow of religion and reformation: for as the same Liuie saith againe very well: Nihil in speciem fallacius praua religione, vbi deorum numen praetendi­tur sceleribus, subit animum timor Liui. li 1. 39.: O lord how long shall Sathan abuse the soules created by thee with a vaine sophistrie in steade of true religion! and such societies, and such families, whether of loue, or of lust, I can not well define, which de­light in latebris, are worthy to be sent ad carceres, that they may there liue in tenebris: for it is fit to send corrupt humors, which ouerloden and pe­ster the bodie in latrinam: For surely such Fana­tickes may doe as great hurt in a common weale as the Pythagoreans did in Greece and Italie, who pretending themselues to bee professors of wise­dome did bring a great number to the admiration and imitation of them: and finding such strength in the weakenesse of the multitude, they beganne to plant their ramme and sette their force against kingdomes & common weales, and had thought vtterly to haue subuerted them, but their com­panies were quickly dispersed, and the greatest parte of these companions was destroyed by fire and sword Polyb. li. 3.: Now to speake somewhat of the li­berties of a citie. S. Paul when he was by the com­mandemēt of the magistrates apprehended, being accused that he troubled the publike tranquilitie [Page] by seditious assemblies, professing himselfe to bee a citizen of Rome hee appealed to Caesar Act. 25. v. 11 though hee were by nation a Cilician, by bloud an Israe­lite, by tribe a Beniaminite, yet because his father c) Acto. 22. v. 28. had beene a citizen of Rome: the liberties were af­foarded vnto him: he likewise, when he was com­manded to be scourged pleaded for himselfe that he was a Romane ibid. v. 25.. But because the abundance of liberties of all the cities of Asia, Africke and Eu­ropa, are sufficiently knowne, I will not stay any longer vpon this point, but wil passe to matters of greater importance, and more difficultie.

The ninth Chapter.
That the distinguishing of demesnes, & the difference of the degrees & callings of men, is according to the law of nations.

COnfusion breedeth alwaies con­tention, partition peace, accor­ding to the old prouerb, Diuide et impera: for which cause our an­cestors did thinke it best to distin­guish their dominions and inhe­ritances by lottes and boundaries, as Abraham & Lot in Palestine, Masinissa and the Carthaginians in Numidia and Mauritania, the Romanes and Nolanes in Italie, the Romanes and Carthaginians in Spayne [Page 61] and Sicilie, the Emperour Valens and the Gothes in Missia, and the regions on this side Danubius, & through the whole tracte of the Romane Empire was a partition made by Theodosius betwixt his sonne Archadius whom he prefected ouer Bizance and all the orientall partes: and his other sonne Honorius, to whom he allotted Roome, and all the occidentall countries: and so Darius would haue made a partition with Alexander of the whole world, that the one of them shold haue all on the one side of Euphrates: the other all on the other side, yet in the first age and infancie of the world this kind of partitioin was vnused and vnknowne, as may appeare by these authorities first of Virgill, who saith: ‘Ne signare quidem aut partiri limite campum Fas erat.’ Virgi. Georg. 1. And of Tibullus:

non fixus in agris
Qui regeret certis finibus arua lapis
Tibul. 1. Elegi. 3.
.

And that of Seneca:

Nullus in campo sacer
Diuisit agros arbiter populis lapis
Senec. in Hippoli. act. 2.
.

yet the case was altered when Ouid writ thus:

Gentibus est alijs tellus data limite certo:
Romanae spatium est vrbis & orbis idem
Ouid. 2. Fasto.
.

And vpon good reason was it altered, for as Boe­tius saith well: Dimensiones terrarum, terminis po­sitis [Page] vag antibus, ac discordantibus populis pacis vtilia praestiterunt Boeti. in geomet.: And the great vse of limits and boundaries Plutarch sheweth, when he condem­neth the vnsatiable couetousnes and illimited en­croachment or inuasion of Romulus verie wittily: Noluit Romulus mensurâ proprij agri prodere mensu­ram alieni siquidem virium compedes terminos esse nouit seruarentur, & iniuriae iudicium, si non serua­rentur Plut. in Num. & pr. R. 15.. And this was the cause that Numa Pompi­lius the king of the Romanes did cause as well a publik perambulation to be made throughout his whole kingdome as priuate limitations & bounds betwixt partie & partie, and for the more solemne and effectuall confirmation and establishing of this course he did dedicate a chappell vpō the top of the Tarpeian hill vnto Terminus, and this idoll was made of stone Plut. in Num.: He was set in a chappell as not fit to be remoued: hee was made of stone as hard to be remoued: he was placed vpon a high rocke as not possible to bee remoued: and to this idoll nothing was sacrificed but cakes, pulse, and the first fruites of the field: the meaning doubtles of Numa was good, if it had not beene signified, & set forth by an euill meane. For to make him im­moueable was to good purpose and agreeable to the truth of diuine iustice: Wherefore Sala­mon saith: that which also is commaunded in Deuteronomie: Thou shalt not remoue the auncient boundes which thy fathers haue made Deut. 27. 17 Prou. 22. v 28. & 23. v. 10.: but the man­ner of diuiding lands & dominions according to [Page 62] the custome of nations is fully set downe by M. Littleton, though applyed to another purpose, & it is fiue-fold: 1. By setting out an equal rate of the lands to be diuided. 2. By the agreement of frends or intermediation of others. 3. By casting lots. 4. By writ de partitione facienda at the commō law, & the action de herciscunda familia at the ciuill law. 5. By making an vnequall partition equall, by a for­rein reseruation Littlet. lib. 3. c. 1.. Distinctions likewise of the de­grees of men hath beene in all nations, in all ages established obserued and vsed. For the aduancing of noble men aboue them of lesse note; and the preferring of the gentleman before the yeoman, and peasant is very ancient, and hath beene vni­formely reteigned: neither is it to bee maruelled at, for nature her selfe hath tought the nations her schollers this lesson. Trauaile through all her kingdome, that is through the whole world, you shall find this difference in force and of great va­liditie. Consider the scituation of the celestiall orbes, and ye shall note, that the fierie heauen is placed aboue the chrystaline, as more worthie, both these aboue the firmament, the firmament aboue the other Spheares as surpassing them: Marke the birdes of the ayre, ye shall perceyue that the Eagle, the Phaenix, and the Parott holde preheminence aboue the rest. Looke vpon the riuers, ye shall obserue Euphrates in his forme and compasse of his streame to be more excellent then Ganges: Ganges better then Danubius, Danubius [Page] better then Tagus, Tagus then Padus, Padus then Tempse, Tempse then Seuerne: Note the fishes of the sea: yea shall find these to haue place aboue the rest the Whale, the Dolphin, the Sturgeon, the Salmon, and the Conger. Cast an eye vpon the beastes of the field, the Lyons, the Pardes, the E­lephants, and Panthers do excell: looke into the bowels & matrice of the earth, ye shall haue gold, siluer, brasse, to exceed all other mettals: search in­to the inwards and the very closet of nature, the best of the grosser stones are the Loadstone, the marble, and the Alabaster: amongst the precious stones, the Diamond, the Topas, the Turkoise, the Smaragde, the Saphire & the Chrysolite. Where­fore the difference of estates, & degrees is well li­mited and expressed by the custome of nations & the discrepance betwixt noble and ignoble well constituted, which first I will generally handle, & as it were opening the signification of the words: and afterward more fully & particularly as draw­ing it in a map by pencill. This world nobilis if it be generally taken, extendeth as wel to gentlemen as to them which by preheminence we cal noble; for nobilis is quasi noscibilis either for his stocke, or for vertue: the nobilitie of stocke or bloud hath been more obserued of the Hebrews & Grecians; of vertue by the Romanes and them of the Nor­therne regions: & so he hath beene accompted ig­noble, who hath not beene known, nor noted for some eminency, & rarenes, according to the verse:

[Page 63]
Solus vbi in siluis Italis ignobilis aeuum,
Exigerit:

Amongest the Graecians at the first, they onelie were accompted noble, who could deriue their pedigrees from kinges or princes, or some other great and famous men; as from Hercules, Cecrops, Aeacus, and the like, or such as by publike decree, and singuler demerit had obteined a crowne of gold, or some statue to be erected for them: And amongest the Iewes, they onelie were accompted noble, which descended from the stocke of Aaron, or the kinges of Israell and Iuda. But the Romanes were farre otherwise minded: for as Salust saith, Hostem ferire, murum ascendere, conspici dum tale facinus facerent properabant, eas diuitias, eamquè bonam famam magnam nobilitatem putabant Salust. in Iugurth.. And an other Romane saith, Genus qui laudat suum ali­ena laudat Senec.. And an other namelie Ouid: Nam ge­nus et proauos & quae non fecimus ipsi vix ea nostra * Ouid. Meta­morph. lib. 13. voco, which golden saying so much pleased that worthie and noble knight Sir Philip Sidney, Lear­ninges champion, Englands miracle, Europes fauo­rite, of whom the wordes of Horace may be veri­fied, if euer they might be truely pronounced of any: ‘Dignum laude virum Musa vetat mori.’ I say they so much pleased him, that he vsed them for a mot: And I know not whether Ouid his in­uention, * Ouid. or Sir Phillippes election be more to be commended: And nobilitie without vertue and [Page] merit was accompted as an image without life: For Salust saith, Reliqui sunt inertissimi nobiles, in quibus sicut in statua praeter nomen nihil est addita­menti: for what difference was there betwixt Ci­ceroes statue, and Ciceroes drunken sonne, sithence both of them had the name, neither of them the qualities of Cicero. But as well the Graecians as the Romanes did agree in this, that for the rewar­ding of vertue, and the honoring of desert, and the animating of others, they did allow Scutchi­ons and Armorie, Crestes and Cognisances to men of speciall note: Which our auncestors (saith Pli­nie) the representations of their dead fathers were proposed to view, their countenances were resembled and engrailed in their Armorie, that there might be some ornaments to decke and beautifie the celebration of publike funerall.

Now to speake more particularlie of the degrees of men, according to the Law of Nations: The degrees of Citizens are to be vnderstood these, which make a difference by state or place, not by sexe as Bodinus grosselie imagineth Bodin. lib. 3. de rep. c. 8.: for if there were none but males in a citie, yet it should be a citie: otherwise how was Rome a citie before the entermariage of that people with the Sabine dames Liui. lib. 1.. By the customes of Perusia and Florence euery one that followeth the standerd, and is initi­ated & entred into militarie profession doth pre­sentlie of a yeoman become a gentleman Bartol. in lib. 1. de dig­ [...]it. ci [...].. But in Fraunce as Bodinus reporteth, gentrie is not [Page 64] gained by vndertaking seruice in warre, but by continuing in the same: if their issue or posteritie do also mannage armes, their issue and posteritie are reputed gentlemen Bodin. lib. 3. de repub. c. 8.. But the Venetians doe measure gentrie and nobilitie by Senatorie state: yet I take it to be after the maner of the auncient Romanes, who did not accompt any Equitem Ro­manum, which was not a Senators sonne: yet ma­nie meere soldiers were admitted of the Senate: Which facilitie of the Romanes in bestowing dig­nities, did afterwards turne to their great daunger and molestation: for C. Marius was onely a soldier, hauing spent his verie Consulships, euen sixe Consulships in warres, and the seauenth should not haue been vnlike to the rest, if God had not preuented him by death: and continuallie be­fore that time hee was employed in warre, ei­ther vnder Scipio the sonne of Paulus Aemilius, or some other great Capitaine: But this man be­ing more in conuaie then counsell, did more hurt then profite the Romane common weale. So did Iulius Caesar: so did M. Antonius, though these later were somewhat more then meere soul­diers. But amongest the Aegyptians none could be souldiers, but the Calasyri, and many yeares after when it was vnder the dominion of the Sultanes, the Memmeluci, who therefore had speciall immu­nities & liberties graunted vnto them: but a meere souldier amongest the auncient Romanes, though he were of excellent desert, yet was accompted [Page] but as a plebeian, and not noble, which may easily appear by the speech of L. Siccius Dentalus madein the Senate house, who boasted that he had serued in warre fortie yeares for his countrie, that he had fought in an hundred and twentie battailes, that he had receiued fortie and fiue woundes, and twelue of them in one day, and all of them ad­uerso corpore encountring the enemie face to face, that he had purchased fourteene cibicall crownes, three obsidionall, foure-score and three golden chaynes, a hundred and three-score golden brace­lets, ten goodlie speares, fiue and twenty faire and costlie arming saddles Dionys. Halycar.: Yet this man hauing no other meanes to attaine to gentrie and nobilitie, was accompted of them in the number of igno­ble persons Salust. in bel. Iugurth. loq. de Mar.. Augustus Caesar a notable wise Em­perour did supplie the want of Senators with rich men Tranquil. in August., though not verie wise, because he percei­ued that the notable order of Senators, which stoode much vpon cost and expence, (wherupon I am perswaded these wordes issued from him, Duas habeo superbas filias, Iuliam et Rempub. Macrob. in Saturnal.) would otherwise vtterlie fall to the ground: But in other respectes he did wholie fauour such as vertue had ennobled. For Aemilius Scaurus, though he were a poore man (pouertie is no dishonestie) yet he was noble Valer. Max. lib. 2., for sometime nobilitie is seue­red from riches: Therefore Tacitus saith of Cas­sius, and Syllanus: Alter opibus vetustis, alter gene­ris claritudine excellebat: yet a man may be noble, [Page 65] and verie rich, as Tullie saith of Roscius, That he was, nobilitate et pecunia municipij facile primus. But it is good to be knowen whether base artifi­cers are to be enseated, and bestowed in places of worth and credite. Xenophon reporteth that a­mongest the Aegyptians, Scythians, Persians, Lace­daemonians, Corinthians, they which did vse base and mechanicall trades were excluded from pla­ces of accompt, and were accompted ignoble Xenoph. in oecumen.. Aristotle likewise writeth, that amongest the The­banes it was a Law, that no man could be admit­ted to place of honor, vnlesse he had left off mer­chandize by the space of tenne yeares before Aristo. in polit.. And the Romanes followed them in this: for as Liuie saith, Quaestus omnis indecorus patribus visus est. And Hippolytus a collibus writeth, that it hath been generallie receiued, that whosoeuer is a gen­tleman, or possessed of an honorable estate, begin­neth presentlie to be ignoble by vsing merchan­dize, vnlesse it be otherwise prouided by the Sta­tutes of some particular Prouinces or Cities: as by the Statutes of Venice, of Florence, of Genoa, of Luca, and of London, where manie of their Sena­tors, magnificoes, clarissimoes, illustrissimoes are Merchants Hippolyt. a collib. in lib. de princip.. And it is the rule of a diuine, mo­rall, and politike writer, that husbandmen, car­penters, potters, caruers either in wood or stone, and the like workmen, are wholie to be debarred from honorable or iudiciall places Ecclesi. c. 38.. And by the imperiall Lawes, Merchants may not be aduaun­ced [Page] to anie honorable estate L. ne quis de dignit. C. L. si cohortat. de cohort. L. humil. de incest. C.: neither might they haue anie regiment of souldiers L. 1. negoti­ator. ne milit. C.. And Plato In lib. de legi., Aristotle Lib. 7. po­lit. c. 9. and Apollonius Philostrat., doe hold mer­chandizing to be an enemie to vertue. Neither will Ciceroes distinction be of anie force against them, where hee saith: Mercatura si tenuis est, sordida putanda est: si magna, et copiosa, multa vndique apportans, multis (que) sine vanitate imparti­ens, non est admodum vituperanda Cicer. lib. 1. offic.: For though his commendation of merchandizing bee not verie great: yet his opinion in this is not greatlie good: for Maius et minus non variant speciem. And the ironicall saying of the pyrate to Alex­ander, was a confutation of this distinction Cicer. 3. de repub., who tolde him in plaine tearmes, That because he did robbe on the Sea with one small pinnasse, he was accompted a pyrate: but because Alexander did the same with manie great Gallies, therefore he was tearmed the gouernour of a fleete: For as Lucan saith well: Facinus quos inquinat aequat. And the same Lucan calleth Alexander Luca. lib. 10, Foelicem predo­nem, a fortunate Robber: And this aunsweare of the pyrate to Alexander is liked of Ciceto him­selfe Cicer. 3. de rep., of S. Augustine D. August. lib. 4. de ciui­tat. dei., and Alciat Alci. 1. consi. 1..

Likewise it hath been a question sometime sifted, whether he that vseth husbandrie may properlie, and in strict reason bee accompted a Gentleman. In the common Law wee haue this rule, that where a Gentleman is sued by [Page 66] the name of Husbandman, he maie saie, that he is a gentleman, and demaunde iudgement of the writte, without saying that he is no hus­bandman: for though a gentleman may be an husbandman by the said Law, yet he ought to be sued by his more worthie addition 14. H. 6. 15. 1. E. 4. 2. 21. H. 6. 55. 12. H. 6. 8.. Nei­ther doth our Law in this dissent from the pra­ctize of other Nations. For Cyrus did verie often boast of his labour, and industrie in mat­ters of husbandrie Cicer. lib. de senect.. And these noble Ro­manes, Serranus, Curius, Cincinnatus, Torqua­tus, and Cato, are commended of Historians and others, for this that they did establish the safetie of the common weale by their handes, which were worne and growne rough by the plough, and labour of husbandrie Valer. Max. Varro. Cicer. Liui. Florus.. In Iewrie and Aegypt how much it hath been esteemed may appeare by this, that neither could Phara [...] pleasure Iacob more to his contentment: Nei­ther could Ioseph procure a greater pleasure vn­to him, then the meadow ground, and pastu­rage of Gozan, in which hee inioyed the com­fort of his age. In Scythia, Arabia, Parthia, Ar­cadia, and other places; as India, Thracia, Meso­potamia, Sicilia, &c. Husbandrie hath been greatly practized, and in other Nations not so much ad­dicted to husbandry, exceedingly praised. Diuines haue in all ages & countries possessed the reputa­tion, either of gentlemen, or of reuerend, right [Page] reuerend worshipfull, and right worshipfull men, and that vpon good reason, which by and by, (God giuing leaue) I will demonstrate. Whether Phisitians may beare anie of these aforesaid titles or no, it hath been in all ages questioned, in some debated, in this decided: Though amongest the auncient Romanes, phisicke was accompted base and sordid by the space of sixe hundred yeares L. Thais § Lucius de fi­dei commiss.: yet about the imperiall time it was receiued into the citie L. quidem C. de decuri., and highlie esteemed. But the Hebrewes and Graecians did alwaies make great accompt of the professors of that science, and so did other nations also, when the Arabians first of all had se­uered Surgeans, Emperickes, and ignorant Apo­thecaries from Phisitions: But let their accompt be great in a citie or common weale, yet they must giue place to the profession of the Law, as being a princelie discipline, the center of common weales, and the science of gouernment, as I haue at large shewed in the first Chapter of my direction to the studie of the Law: And this euen Philoso­phers haue adiudged Plat. in Gorg. Aristo. lib. 1. polit. c. vlt..

But now whether meere Grammarians and Rhe­toricians, I meane sole & single professors of these Artes may challēge to themselues the title of gen­trie and worship, it hath verie much been doub­ted. Cicero saith of Rhetoritians: Rhetores M. Crasso, et Domitio Censoribus, claudere ludum impudentiae iussi Cicer. lib. 3. de orat.. But after his time it was receiued into the citie, and obteined manie great immunities: [Page 67] yea euen these which taught boyes their Alpha­bet, or first letters were so rewarded l. 6. de exe. tut. l. vlt. in fi. de mu. et ho. l. 2. p. vlt. de vac. mu.: Vaspatian graunted and allowed to Rhetoricians great fran­chises, and priuiledges, Dio. Cassi. in Vespa. Gelli. lib. 1. c. 11. which made Rhetoricke to flourish in that common weale in these times: Tacit. lib. 11 an [...]al. For as Tacitus saith well, Sublatis studiorum pre­tijs, etiam studia peritura, vt minus decora: and be­fore him Plato affirmed it: Artes illuc confluunt, v­bi ipsarum pretium est Plato in maior. Hippi.. And how much it flouri­shed in other common weales may appeare in that Demosthenes, Aristotle, Demetrius Phalereus, eloquent and wise men were credited with the honor of embassage, and such haue beene in all a­ges well esteemed, vnlesse it were that they haue miscaried at the hands of some couetous churles, and pennie-fathers, or vainglorious pictures of mankind, which as they measure a mans strength by his stature, so they way his inward abilitie by the outward apparell of his bodie, whose childish humour Iuuenall gibingly toucheth.

didicit iam diues auarus
Tantùm admirari, tantùm laudare disertos
Vt pueri Iunonis auem.

This is to esteeme a booke by the couer, a horse by the his trappinges and caparison, and a Grey­hound by the collar: O quantum est in rebus inane! When will worldlings iudge vprightly of things! ne­uer: for the blind cannot iudge of colours, r: and M. Brutus was wont to call such gawdie, & garish fellows, which were rather fine by the tailors nee­dle, [Page] then the vniuersitie learning, aurcas pecudes.

Hauing particularly and seuerally spoken, and as it were by way of anatomie, of the diuers cal­lings, estates, and degrees of men, it is good to marshall the callings and degrees in order as well as I can conceiue them. In the first place must bee reposed the person of the king, who as the image of God agreeth with euerie man, as the lieuete­nant of God with the magistrate, as the annoin­ted of God to rule & gouerne with neither of the former, but with God onley, whose paterne he is: after the king if we wil discourse according to rea­sō & ancient example the chiefest of the clergy are to be ranged: for as Iosephus noteth, the Hebrews had but 2. sorts of nobility the one sort of the stock of kings who did successiuely reigne: the other of the linage of Aarō which only were made priests: for that people reposing all their good in religion and the worship of God, did accompt such holy men to be very noble: therfore whensoeuer God did threaten the destruction, & ouerthrow of that people he doth threaten them thus, that the state of the priest and vulgar sort of men shalbe alike Esa. 24. Ose. 4.; and they which in ancient time did inhabite the Cellicke or Northwest part of France did preferre their Druidae, who had charge of their sacrifices and iudgements, before all sorts of people of the knights, and of the nobilitie Caes. lib. 6. de bel. ciu. Plut. in Anton.: So the Turkes and Arabians haue appointed certaine great men cal­led Mophtae to be their high priests, whom they do [Page 68] greatly reuerence and the summe of all weightie ecclesiastical matters they referre vnto them. The next place should be possessed of Dukes, Marqui­ses, Earles, Vicounts, Barons, &c.

The tenth Chapter.
That in the law of tributes, subsidies, and prerogatiues royal, all Nations haue consented.

AS it behoueth euerie Monarch to haue a watchfull care of his sub­iects good, and to bend the force of his minde to the preseruation and maintenance of their safetie and good estate: so subiects should not grudge to pay vnto them tributes & subsidies, and other publike impositions, that all necessarie charges may bee substantially defraied, al conuenient designes pro­duced into acte, and solemnely exploited. Prin­ces therefore must haue great care of the furni­shing of their treasurie; for who is ignorant that money is the strength and sinew of a state, howso­euer Machiauell Machiau. in lib. obseru. in Liui. paradoxically would inferre the contrarie, a man very vnfit to defend paradoxes: by it the bounds of the Monarchie are garded, the pore are relieued, they that haue deserued well are rewarded, the publike and necessarie businesse of the common-weale is dispatched, and therefore that countrie prouerbe Pecunia sine peculio fragili [...]. may verie well bee ad­mitted into the princes eare, Money without stocke is frayle and brittle: And if warre bee to [Page] bee vndertaken or maintained, how can this bee done without mony, sithence soldiers are neuer kept in order without salarie, and reward payed and distributed vnto them. Consilium principum fuit (saith Pollio) vt milites, quo solent placari genere, sedarentur: promissis itaque per Martianum aureis vicenis, & acceptis &c. Tr. eb. Pollio in Gallien. Philip king of Macedonia was wont to say, that there was no sconce, tower, or forcelet so strong, into which an Asse lodened with money might not enter, and it hath beene noted of Phillip late king of Spaine, that he effected more by his Indian gold, then his Spanish yron. Therefore Horace saith:

Aurum per medios ire satellites
Et perrumpere amat saxa, potentius
Ictu fulmineo
Horat. 3. Carmi. od. 16.
.

Therefore it is good for a prince in time of peace to prouide for the maintenance of warre: for that which is said of a citie or common weale may bee applyed to a prince or Monarch:

—foelix
Tempore qui pacis bella futura timet.

And how can prouision bee made for an armie without mony, & how can an army fight without prouision: for as Cassiodorus saith: Disciplinam non potest seruareieiunus exercitus, dum quod deest sem­per praesumat armatus, necessitas moderamen non di­ligit: one of the ordinarie meanes vsed in all king­domes for the dispatch and accomplishment of publike affayres hath from all antiquitie beene [Page 69] tribute payed by the subiectes to their prince, a thing as ancient, so necessarie: and Tacitus wisely collecteth the conueniencie of it: neque quies gen­tium sine armis, neque arma sine stipendijs: neque sti­pendia sine tributis haberi possunt Tacit. lib. 5. annal.: The Romanes did maintaine their warres by tribute; for after Pompeies victory which hee had against Mithrida­tes, they had out of Asia maior six millions and a halfe, out of the lesser Asia onely two millions, which none will maruell at, that knoweth Asia to bee a fertill and fruitfull countrie, greatly re­plenished with the varietie of the fruites of the earth, with the largenesse of pasture, and the ranknesse of the soyle, and the multitude of such thinges as are transported into other countries for sale: but the tribute of other prouinces was so slender, that it scarcely sufficed for the de­fence and protection of them Cicer. pro leg. Manil.. And all France did not yeelde the thirde parte of that tribute vnto the Romanes, which some part of Fraunce did afterward pay vnto their kings, as Alciat hath obserued Alci. l. 27. de V. S.: neyther am I of the minde of Phillip Commineus, who denieth generally that princes may command tributes Philip. Commi. com­ment.: for I make no doubt but a conqueror may commaund tribute, and all that come in vnder the conquerour by the law of nations: and therefore the Romane generall saith vnto the French men: Iure victoriae tributum vo­bis addidimus Tacit. 4. histor.: And Iustinian doth commaund that tributes may be imposed vpon the Zani be­ing [Page] conquered vt victos se agnoscerent: and the Iewes though they had beene clearly conquered (for their citie was sacked, their temple possessed, their Sanctum sanctorum looked into: for as Flo­rus saith: Impiae gentis arcanum illud vidit sub aureo vti coelo Flor. lib. 3. histor.:) yet craftily after their manner, because they would haue Christ to haue challenged their earthly kingdome, by that mean to draw him into hatred with Caesar, they demaunded of him whe­ther it were lawful to giue tribute to Caesar: but he that alway professed, Regnum meum non est ex hoc mundo, gaue them a bone to gnawe, Date quod est Caesaris Caesari, and quod Dei Deo Mat. 22.: for in deed tributes are allowed by the law of God Deut. 20.: & therefore Cicero saith excellently, that tribute is victoriae praemium, poena belli Cicer. in verr. 5.: And Orosius al­most as excellently, that it is vinculum pacis, monu­mentum belli Oros. lib. 5. c. 1.. And though the Spaniards, Ger­manes and English, doe seeme rather to offer a tri­bute to their Monarch then the Monarch to com­maund it, (for the curtesie of England is great, the clemencie of their princes greater) yet for England thus much I dare speake, & vnder the rule of mo­destie protest, that sithence the vniuersal conquest of William, who first commanded and imposed tri­bute vpon this land (for conquerours may com­maund) tribute and subsidie haue beene as iustly both by the law of God, and the law of nations, payed in England as in Iewrie, yea and iustly con­tinued as a remembrance of a conquest: where­fore [Page 70] it is diuinely said of that great diuine Tertulli­an: Agri tributo onusti, hominum capita stipendio censa, notae sunt captiuitatis: Lands charged with tri­bute, polles with taxe, are signes of conquest Tertull. i [...] Apolog.. Bodinus in my mind giueth good counsell to princes to set a great impost vpon such thinges as corrupt the manners of their subiectes, as namely vppon these compounded perfumes, these paintings of the face, these Margarites, these Marchpanes, Wines, Bodin. lib. 6. de rep. c. 2. and Tobacco: but vainely and contra­dictorily to himselfe doth Bodinus say, that Haec principi prohibenda non sunt, nec si velit possit, pro­uing it out of the fifth booke of Plato because such is the nature of men, that these things quae sanctis­sime vetantur, auidiùs expetant; By this reason there could bee no fault, nor default forbidden: as for Bodinus I excuse him thus: Nullum fuit magnum ingenium sine mixtura dementiae, which Seneca ob­serueth Senec. in fin. lib. de ira.: And as to Platoes authoritie this is but errare cum Platone, Plato did erre with Plato. Some­time hee did erre, as in the discourse of intempe­rate banquets, in the brutish lust & inward itch of Al­cibiades, in his fond & vnclean fables: & of Athenaeus hee is more sharpely noted to bee inuidissimus, rabiosé male dicentissimus, mendacissimus, improbissi­mus, ridicule ambitiosissimus: lib. 4. 5. 11. & by his darke & am­phibologicall writing, he is said to be the cause of the death of that thrise-worthy Romane M. Cato, Plut. in Cat. whose death at Vtica gaue him his dismall name, [Page] and Solons lawes though hee were his ancestor, a great deale wiser, and farre more imployed in matters of estate, could not content him but hee must haue visioned lawes, such as were neuer vsed sithence his time, and therefore as it is likely, ne­uer shall be vsed: For what is it that hath beene, that that shall bee, and what is it that hath beene done, that which shall bee done: And there is no new thing vn­der the sunne, Eccleast. c. 1. and that that shalbe hath now beene Eccles. c. 3.. But to come to my purpose again, and to another prerogatiue of princes.

Princes likewise maintayne their realmes and their estate royall by importing and bringing in such things, as be of value or price. Wherefore Liuie noteth of Carnileus Consul Liui. lib. 9., that all the brasse and all the siluer he brought into the trea­surie: and he saith of Fuluius, that hee brought out of Spaine into the treasurie an hundred fortie two thousand pound of siluer: and an hundred twentie seuen thousand pound of gold: and of Camillus Liui. li. 3., that when hee had ouercome the French nation beyond the Alpes, hee brought in a hundred threescore and tenne thousande pounde of siluer, and of brasse three hundred twentie thousand: and of Flaminius Liui. lib. 34. that he brought out of Greece eighteene thousande pounde of siluer in bullion, and two hundred and seuentie thousand of plate, fourescore and [Page 71] foure thousand shillinges, and three thousand seuen hundredde and fourteene poundes of golde: a buckler of golde entier. Of Phillippes money a hundred fortie and fiue thousande pounde, and an hundred fourteene pounde of golden crownes, which the cities bestowed on him. And Paulus Aemilius Liui. lib. 45. that president of a capitaine, when he had surpised Macedonia, brought into the treasurie a thousand and two hundred sestertians. And Caesar hauing ouercome Fraunce, foure thousand sestertians. Fabius Maxi­mus Liui. lib. 27. brought in fourescore and three thousand pound of golde, beside great quantitie of siluer. And Scipio commonlie called Asiaticus Liui. lib. 36. 38. 39. did bring in after his victorie had against Antiochus, two hundred thirtie and three poundes in golden crownes, two hundred fortie and seauen thou­sand poundes of siluer, of Phillippes rials a hun­dred fortie thousand, and a thousand and twentie foure poundes of gold. Who can number that which Cato brought from Cyprus Flor. lib. 3.: that which Pompeie Lucan. lib. 3. brought from the Easterne & Southern warres? These by doing thus did make that com­mon wealth great: others by doing the like may make others like. And Alexander the great did replenish all Greece with siluer, when hee had atchiued the victorie of Darius and the Persians: Looke vpon my whole armie (said he) they which be­fore had nothing but coates of steele, do now lye in sil­uer beds Curti. lib. 8.. And much did Anniball enrich the Car­thaginian [Page] treasurie, when after his victory at Cannae he sent into the Senate of Carthage Liui. lib. 23., three strike of golden ringes, and so compassed them by measure, though by number he could not D. Augusti. lib. 3. de ciuit. dei c. 19.. And in the holie Scripture it is reported of king Salo­mon: That the weight of gold, which was brought vn­to him from foreine countries yearely, did amount to the value of sixe hundred, sixtie and sixe talents of gold, beside that which his collectors leuied vpon his subiectes, and tributaries, and the custome which he had of merchants, together with the tribute of the Kinges of Arabia, and the Lieutenants and Gouer­nours of nations any waie subiect or subordinate vn­to him 2. Chronic. cap. 3. 3. Reg. cap. 10..

Custome likewise is a prerogatiue and benefit to which Kinges and Princes are by the Law of nations entitled: It was of the auncient Italians called Portorium, because it was to be taken of thinges that were to be caried out, and to be brought in Cicer. in oration. pro leg. Manil.. The Turkish Emperour taketh the tenth part of the value of the thinges that are to be caried out of straungers, and the twentieth part of his subiectes Bodin. lib. 6. de rep. c. 2.. And the king of Spaine taketh in India the tenth part promiscuè, as well of straungers as his subiectes The booke entituled (The present state of Spaine.. And by the Law of England, Merchants strangers being made deni­zens, shall paie custome as straungers that be not denizens 11. H. 7. ca. 14..

It is good for euerie Prince to haue speciall care and regarde of mainteining merchandize, be­cause [Page 72] by that meane, not onelie thinges profitable are brought into a kingdome, but manie thinges are caried out to be sold, and exchanged for pub­like good: and manie sodain chaunces do arise, wherein no small daungers are put aside by their meanes. Plutarch reporteth, that in Solons time merchandizing was held in great price, and he giueth this reason for it, because by that meane diuers foreine commodities were brought in, friendship was procured with straunge kinges, experience in manie thinges was attained Plut. in Solon.. And the vse of merchandizing beeing once taken a­waie in the kingdome of Naples, was the cause that all the prouinciall people was presentlie brought to pouertie Pont. c. 45. de liberalit.. And for the alluring of straunge Merchants into a Realme, their priui­ledges must be inuiolablie obserued, especial­lie at the times when they hold their martes, or fayres, that they may safelie goe, returne, ta­rie, and staie with their wares, which diuers of our Statutes of England haue prouided for, Magna Chart. cap. 28. 9. E. 3. cap. 1. et 2. 14. E. 3. cap. 1. 25. E. 3. cap. 4. 27. E. 3. cap. 2. Of this mat­ter Kings and Princes should haue good regarde: for Platoes admonition is to be followed, when hee saith, Peregrinorum commercia respub. ne auersetur Plat. lib. 12. de legib.. And Amásis the Aegyptian king was so glad of straungers resort and their com­merce, that he graunted to the Graecian mer­chantes meere straungers, the vse and exercise [Page] of their rites and religion in their owne language, and for their more expedite negotiation in that Realme, there was a certaine place appointed, namelie Naucrate for the receit of foreine wares Herodot. lib. 2.. And Aristotle is of opinion, that a principall citie must be erected in some conuenient place wher­to thinges which be necessarie to this life may be abundantly conueyed, and this he would haue situate neere to the sea Arist. 5. po­lit. c. 7. et 6. politic. c. 7.. And the people of Me­gara did iustlie complaine against the Athenians, who had vtterlie secluded them from their Ha­uens, and from marting with them Plut. in Pe­ricl.. This there­fore must needes be a good meane to encrease the riches of a kingdome. But it is the Princes prero­gatiue to permit and to forbid merchant straun­gers at their pleasure and discretion: and therfore the Statute of Magna charta hath in it a good clause for this purpose: Omnes Mercatores, nisi ante pro­hibiti fuerint, habeant saluum conductum exire, & venire in Angliam &c Magn. char. cap. 28.. otherwise some Mer­chants may sowe bad seede, euen the seede of se­ducement of the Princes lieges, shrowding them­selues vnder the curtaine of exposing wares to sale: But these which are honest Merchants, and of iust meaning are not to be forbidden.

Other benefites, and prerogatiues there be, which the Law of Nations doth allow to Princes in regarde of their exceeding costes and charge that they are at in the defending, and gouerning their Realmes: For though I haue shewed before, [Page 73] that a masse of wealth almost infinite was brought into the Romane treasurie: yet he that conside­reth their great expence, and exceeding charge, will, I am sure, confesse, that this great wealth had neede to haue been verie well husbanded for the mannaging of their ordinarie affaires, other­wise it would neuer haue stretched to the defray­ment of their charges. Their forces did consist of two hundred thousand foote-men, of fortie thou­sand horse-men, three thousand warlike chariots, two thousand shippes, a thousand fiue hundreth pinnasses, fourescoore gallies, double furniture of armourie, and three hundred Elephants, and in their shippes were a hundred thousand souldiers, and marriners Lipsi. de magistr. Rom. lib. 1. c. 4. 5.: So that Cicero saith plainlie, that the Romanes, notwithstanding all their great reue­nue and treasure, were scarse able to mainteine their armie Cicer. pa­rad. 6.. In consideration of which great and extreame charges, the subiects of all Nations haue giuen and yeelded to their princes, diuers prince­lie and roiall benefites and prerogatiues for the magnifying of their estate: As first the vse and benefit of salt Mines, (for as the Italian prouerbe is: Vino, oleo, è sale suono mercantia reale: Wine, oile, and salt, are the merchandize roiall.) And the Veien­tines in auncient time being ouercome of Romu­lus, were straitlie forbidden to absteine from the salt Mines, which were about the mouth of the riuer Dionys. Halycar. lib. 2.. And these salt Mines were brought into better forme, and were made more commodious [Page] for the common weale vnder the reigne of An­cus Liui. lib. 1.. And Aurelius victor doth note, that at the self same time an impost was made, and ordeined for the same Victo. lib. de vir. illustr.. And an other impost was made when Liuie was Censor, who of this word Salt, had the name of Salinator giuen him Liui. lib. 29.. And Paulus Aemi­lius hauing subdued the Macedonians did reserue the prerogatiue of salt vnto the Romanes, and did forbid the Macedonians to vse any salt, that perhaps they might finde out, without the permission of the Senate. Yet the commerce of Salt he did af­ford to the Dardanians or Troians, the auncient progenitors of the Romanes Liui. lib. 45.. And the Publicanes had Salt in farme, as may appeare by Ciceroes re­port, and other authorities Cicer. pro le. Ma. l. sed et hi. D. de pub­lica. l. [...]. C. pro fo. l. si quis C. de vect. et com.. A princelie thing doubtles it is, and for it there hath been great con­tention betwixt great estates: as namelie betwixt the Burgundians, and the Almannes, betwixt the Hermunduri, and the Catti, together with that of Perusia vnder Paulus the third, and that of Fraunce vnder Frauncis the first, and diuers others daunge­rous quarrels haue been about pretensed titles to Salt Ammian. lib. 28. Tacit. lib. 13. Guicciar. lib. 12. 14. 16. 18. 19.. Neither is it to be meruailed that Princes make so great accompt of it: for Homer accompted it diuine, if it be true which Plutarch reporteth of him Plut. in symp. 5. q. 8.. But what shall we saie now of the other en­tralles of the earth: as Pitch, Chalke, lyme, quarrie stone, brimstone, and the like: As for gold and sil­uer I make no question, but by the Law of nations they belong to the Prince. I would aske this que­stion, Sithence God hath treasured in the mines [Page 74] gold & siluer, & other mettals: for whom hath he treasured them? if all the Mines of gold & siluer should be in the lands of one subiect: is it lawfull for him to coine money of this siluer & gold? no verilie, as may appeare by that question of our Lord and Sauior, when he asked whose stampe or impression the money did beare Matt. 22. ver. 20., what shall he then do with it? shall he make plate of it: by this mean a subiect shall haue plate, & the king none, which is not conueniēt: Therfore I take the iudg­ment giuen in the case betwixt the Q. Maiestie & the Earle of Northumberland, touching the title of these roiall Mines to be sound and grounded vpon inuincible reason: howbeit the graunt was omnium et singularum Minerarum: for the diuersitie is there by Wray well taken, that there be two sorts of Mines, mines roiall, & base mines; Now mines roiall may be subdiuided into two other kinds, those which contein in them siluer or gold entier­lie: or which haue brasse or copper in them, and haue some vaines of gold intermixed, both these belong to the Prince: for the gold as magis dignum attrabit ad se minùs dignū: But such as haue in them meerly brasse, iron, copper, or lead, may belong vn­to a subiect by special title 10. Eliz. Com̄ 310: In­formac. pur Mines., notwithstanding Dio a wise & iudicial writer maketh all Mines of mettall in general publike, as belonging to the Prince or common weal Dio lib. 52.. And mines of Pitch Cicero allot­teth to the Prince by the like cēsure Cicer. in B [...]ut.. And doubt­les there is great reason for their opinion, be­cause it should seeme that these mettalles were [Page] created of God, not for a priuate, but a publike vse at the first: for iron and steele do principallie serue for armour, and there is a rule in the Ciuill Law, De armis publice asseruandis Nou. 85.. Pitch is princi­pallie ordeined for the glewing together of the bordes of shippes, and shippes were principallie ordeined for the common weale. Copper and Brasse haue in all ages and common weales been compaignions of the aforesaid Mettals, and haue been vsed with them, and passed with them as the shaddow with the bodie. Yet if a Prince haue transmitted his title or right vnto the base Mines to anie of his subiectes, I think he cannot by roiall claime wrest them out of his handes. And this Suetonius reckoneth as one of the concussions of Tiberius, who tooke from cities and priuate men the Mettals in which they were lawfullie inte­rested Suetoni. in Tiber. c. 49.. And Laurentius Medices hath been tou­ched likewise for the same fault Molin ad Dec. cons. 292., that the landes and goods of Traitors and Felons doe by the Law of Nations belong to the king or Monarche hath been afore cleerelie prooued in the second Cha­piter of this Treatise. But what shall we saie of Treasure found in the earth will not the Law of Nations assigne it to the Prince? Yes verilie, not­withstanding Plato his straunge conceit, that they should be immobiles, and Dijs inferis sacri: for should there be no vse of so pretious thing, and one of the most gorgeous creatures of God. It is an argument of a froward & a brutish humour to [Page 75] make vse of quarrie-stone & not pretious stone, of coal, and not of gold. The Romanes were as super­stitious as Plato, but a great deale wiser, for they dedicated a temple to Pecunia that they might be pecuntosi, stored with money D. Augstin. lib. 4. de ciuit. dei. c. 21.. Wherefore Iu­uenall by his leaue was deceiued, when he writ:

—etsi funesta pecunia templo,
Nondum habitas, nullas nummorū ereximus aras
Iuuen. Satyr. 1.
.

But it is no meruaile if this poet were ignorant that it was idolized: for Varro writeth, that to many of the learned their gods, their sacrifices and ceremonies were hidden and vnknowne, but M. Stamfords reason wherefore treasure should be­long to the king is vnanswerable, and it is this quia dominus rei non apparet, ideo cuius sit incertum est 22. Assis. pl. 99.: and it is a currant rule in all nations, In ambiguis ca­sibus semper praesumitur pro rege. Adrianus Caesar made a lawe as Spartianus reporteth, that if any man had found treasure in his owne ground him­selfe should haue it: if in an other mans hee shall giue the half to the owner of the soile: if in a pub­like place he shall diuide it equally with the trea­surie. This law was abrogated by other lawes fol­lowing, and reuiued by Iustinian, but now and long time agoe the ciuill law hath transferred it to the prince in whose realme it is found l. 3. §. Nera­ti. D. de acqui. posses.: and it is a firme conclusion in the common law: Quòd the saurus competit domino regi, & non domino li­bertatis, nisi sit per verba specialia Fitzh. Coro. 281. 436..

The eleuenth Chapter.
That all Nations haue both secretly and by the course of their ouert actions, acknowledged and yeelded to the truth of the lawes and commandements of the 2. table of the decalogue.

HOw far the light of nature stret­cheth, may appeare by the liues of vertuous heathen men, who knowing that the sixe last pre­cepts, which almightie God pre­scribed to his people were to bee obserued and kept, yet wanted grace to refer them vnto God, who ought to bee the marke of all our actions, and in regard of whom only they may be tearmed good: & M. D. Barlow in his deep & lear­ned discourse against the shallow-headed Papist reasoneth soundly and prooueth by the Apostles words, quidquid nō est ex fide est peccatū, & by other vndeniable proofes that such works could not be acceptable to God, because howsoeuer they pro­ceeded from God, yet they were not referred to the glorie of God: for though God moued them to doe well, and some of them confessed: Est de­us in nobis agitāte calescimus illo: yet before the end he left them, because vainglory was their end, and [Page 76] so they did their suite at a wrong court. But now let vs particularly examine the obseruation as wel of the gentiles and Christians of these commaun­dements and ordinaunces. The obedience that children ought to giue to their parents hath bene straitly commaunded by God and seuerely en­ioyned by Emperours Exod. 20. v. 12. Deut. 5. v. 16. Acto. 4. 19. Pompon. l. 2. ff. de iust. et iur. pius Im­perat. l. 1. C. de alen. lib.: and Homer diuinely ac­cording vnto the wordes of this precept doeth threaten that the life of disobedient children shall not be long Homer. in Iliad.: & Plato hath an excellent speech to this purpose: He which mainteineth his parents whē they are old in his house let him thinke that his house shalbe neuer be possessed of the like ornament Plat. lib. 11. de legi.: there­fore it hath beene ordeined of God, that children which were disobedient to their parents, should be punished of the magistrate Deuter. 21. v 18., & his iudgement is thus set downe: If any man haue begotten a stub­borne and froward child which will not obey his father & mother, & being corrected continueth still in diso­bedience, let thē bring him to the elders of the citie, and to the iudgement gate, and the father shall say to the people: this our sonne is stubborne and despiseth our admonitions, and giueth himselfe to riot and inconti­nencie, then the people shall stone him, and he shall dye: that the euill may bee taken from the middest of you: Yea euen they which had only curst their parents were adiudged to death: In former time hee that had slain his father or mother grandfather or grādmother, was first bet with rods vntil the blud trickled downe, & then being thrust into a sacke [Page] together with a dogge, a cocke, and a snake, hee was throwne into the bottome of the sea, and by Pompeis law it was prouided, that if the sea bee not neare, he should be throwne out to deuouring beasts. At Rome this fact was not heard of, till L. Ostius did slay his father, which happened after Hannibals warre Plut. in Rom. l. 1. Et l. paena. ff. ad l. Pomp. de par­ricid. Cicer in oration. pro Rosc. Amerin. et in orator.: And Plato his law is, that if a man in his furie or madnes do kill his father or mother, and they before their death do pardon him the fault, yet he is to be adiudged guilty of slaughter, of im­pietie, of sacriledge Pl. lib. 11. de legi.. But what shall wee say of Orestes, who did slay his mother because she did slay his father: though there bee diuers opinions which do acquite Orestes, as namely the opinions of Cicero Cicer. in Milon., Paterculus Paterc. lib. 1., and Quintilian Quintil. lib. 5. c. 11.: yet a­gainst them are Socrates Plat. in 2. Alcibiad., Diodorus Diodor. l. 5., & Aristotle Aristot. l. 2. Rhetoric. c. 5., but why shold we depend vpon the iudgement of man in this case, when it is manifest that the iudgement of God was in the highest degree, if we respect the paines of this life onely, executed vpon Orestes: for he was plagued with madnesse a terrible signe of the reuenging wrath of God.

And murder hath beene so much detested that, a beast which had slaine a man was commanded to bee stoned, and that his flesh should not bee ea­ten Exod. 21. v. 28. and by the ciuill law if a man be bitten of an other mans dog, the owner of the dog is chargea­ble vnto him that is hurt, because hee did not tie vp his dogge or musle him l. 1. §. sed et­si canis, ff. si quadrup. pau­per fecer.: therefore Solon deuised a pretie punishment of such wronges, [Page 77] namely that the dogge who had by byting hurt a­ny man should haue a clogge of foure foote tyed to his necke, and so should be yeelded vp into the hands of him whom he had hurt, which Plutarch calleth bellum commentum ad securitatem Plut. in Solon.. They which had killed a man in Greece did vsually flie to forreigne princes, and there if hee who was slaine was a stranger, they vsed to sitte at the thre­shold of the dore with his head couered with the sword wherewith he was slaine: if hee were one of the same countrie, the sword was brokē in two, and the point of the sword was helde vnder one arme, the hilt vnder the other Sophocl.: a lamentable sight no doubt, but done to this purpose, that they which had slaine the men might by these forraine princes haue expiatiō of their fault, which expia­tion was fully as bad or rather worse thē the mur­ther; for the princes who were to expiate thē, did by inchantments inuocate and make suite to the wicked spirites, that they may absolue them from the fault which is done by sprinkling them seauen times with water, the predecessor of the Popes holiwater, and to this feate seauen garments were therewith sprinckled, then they kill a swine, a fitte sacrifice for the deuill: then they call vpon Iupiter Hospitall, praying him that he wold not vexe with furie the party that had offended: thus the absolu­tion is worse then the offence, and like to that of the merry Monke: Absoluo te ab omnibus benefact is tuis, & peiorem te relinquo quàm accepi Erasm. in colloqu.. Then [Page] there are boughes spread along the houses, that the deuill might tread soft. Some of them washed themselues in the sea, till they had almost drow­ned themselues: murder is the forerunner of death: and that foolish solemnitie Catullus glaun­ceth at: ‘Nec genitor Nimpharum abluat Oceanus,’ Likewise Ouid:

Ah nimium faciles qui tristia crimina caedis
Fulminea tolli posse putatis aqua.

after this manner Adrastus fled from Thebes to Ty­deus: Peleus fled to Patroclus, when hee being but a boy had slaine Clesonynus a boy likewise: & Pa­ris though he had stolne away Helena the wife of Menelaus; yet when hee had slaine Antheus Ante­nors sonne, whom he loued, he fled to Menelaus (a great iudgement of God) his very enemie for ex­piation, like to that iudgement of the almighty executed vpon Cosby an Irish-man, who when he had slaine the towardly Captaine the Lord Burgh, sought by-pathes, and had thought to haue fled from the slaine body, as farre as the Sunne is from the Moon, but the Lord put a ring into his snowt, and brought him backe againe, almost as neere to the murthered Lord as the grasse is to the earth: a fit admonition for these times wherein homo sa­cra res per iocum occiditur Senec. lib. de ir.: In Egipt and Babilon he which had slaine a man did penance by doing pil­grimage on the mountaines, and then sacrificing vpon the tombe of the dead, and so being clean­sed [Page 78] of the Gymnosophistes. The Persians vnder the reigne of Semiramis did shaue the head of him that had slaine an other and confiscated his goodes: and caused him to go vppon bur­ning coales or firebrandes, and then sprinckled him with water, the patterne of the Popes purga­torie Sard. Ferrar. de mor. gent.: The Iewes did vsually kill such by sword or by rope Card. Sigo­goni. in lib. de rep. Hebr.: according to the commaundement of God. Qui effuderit sanguinem hominis in homi­ne, sanguis eius effundetur, quia ad imaginē Dei fecit hominem Genes 9. v. 6. Matt. 26. v. 52.. How murther hath beene punished by the ciuill law, the canon law, and the common law of this realme, I haue shewed I hope suffici­ently in my Parallele of the lawes, so that I shall not need here to rowle the same stone.

After the hurt of a mans owne bodie, nothing can happen to him worse then the abusing of the bodie of his wife: for (as Salomon saith) iealousy is the rage of a man, therefore he will not spare in the day of vengeance Prouerb. 6. v. 34.. This last did first cause the diluge: and after the diluge, the destruction of the people of Sodom and Gomorra voluptuous­ly mingling themselues with the women of the Moabites, where there were twentie and foure thousand slaine Num. 25. v. 9.: For the vncleannesse of the Gabeonites with the Leuites wife, the whole tribe of Beniamin was destroyed Iud. 20.: By the law of Moises if any had committed adulterie with ano­ther mans wife, the adulterer, and the adulteresse were both condemned to death Leuit. 20. v. 10.: & so was adul­terie [Page] punished by the Romane lawe called the law Iulia howsoeuer it slept in Iuuenall his time, one that had beene wanton himselfe: Vbi nunc lex Iu­lia? dormis? yet after this law was recalled by the Emperour Alex: l. Castil. C. ad l. Iul. de a­dulter. therefore Constantine did pu­nish sacrilegious destroyers of marriage by the sword l. quamuis. c. eo.: therfore the Popes stewes are to be aban­doned, by whose contagion all Europe hath offen­ded: Let his holines & his fulminant foolish deity as well in all other respects as in this, bee measured by the law of God, and it will appeare to bee abo­mination by the law of nations and desolation by the law of God, which all nations owe vnto him. God hath said. Non erit meretrix in Israel, nec scor­tator Deut. 23. v. 17.. By the imperial law it is forbidden, that no bawdrie should be exercised, or any stewes suffe­red in any place through the whole Romane Em­pire Nouell. Const. 14.: Lactantius writeth Lact. lib. 6. c. 23. that the deuill conse­crateth stewes (as the Pope doth Iesuites and Se­minarie priests, the one for spirituall lust and ido­latrie, or if that faile, for treason: the other for car­nall) that he may solemnely laugh both at the a­dulterer and the adultresse, and so make a ban­quet of both, which is signified by the Italian by­word. The woman is the fire, the man is the roast­meate, in commeth the deuill, and he playeth the cooke. Flor. giardin. de recreat. In Germany they vse to cut off the heare of an a­dultresse, and the husband whippeth her out of his house through the streete Far. lib. de mor. gent.: and I haue seene some of them balded here in Englande [Page 79] with a white sheete on their shoulders on the mar­ket daie: but that custome is now, as far as I can perceiue disused: I could wish that it were recon­tinued, that we might know a knaue and a queane by their coloures. And they were wont likewise to haue a bell runge before them, which was a custome vsed amongest the Romanes, as Perseus sheweth, who because it was wont to be runge at nine of the clocke, calleth them therefore Nona­rias, a custome discountenanced and broken by Theodosius, but for what reason I know not: shall we vse nothing that the Gentiles haue vsed? Ma­homets law is too light for this fault: for the adul­terer is punished but with an hundred stripes. But in Aegypt in auncient time he had a thousand, and the nostrils of the adulteresse were slitted. Solons punishment likewise was too light, yea, and a­gainst reason, who imposed vpon him that raui­shed a maide, the mulcte of ten groates, vpon him that allured a maide to naughtines twentie. But in Athens afterward the rauishour was puni­shed with death, if the rauished partie would not marie him Far. lib. de mor. gent..

In the prohibition of theft, all Nations haue likewise consented. They that steale a sheep out of the flocke, or an oxe out of the heerd, are both by the Ciuill and common Law theefes. Vlp. lib. 1. ff. de abig. They which steale Doues out of a douecote, are by the ciuill Law accompted theefes Instit de rer. diuisi. §. serm. l. 3.. But by the com­mon Law, felonie cannot be committed by the [Page] taking of beastes that be sauage, if they be sauage §. item fer. ff. de acquir. rer. poss. Iustit. de rer. diuis. §. gallinar. l. si pauon. ff. de furt. and vntamed at the time of the taking: nor for taking of Doues being out of a douecote: nor for taking of fishes being at large in a riuer: for such taking is not contrectatio rei alienae, sed quae est nul­lius in bonis 18. H. 8. 2. 22. Ass. pl. 95.. And the stealing of a Doe which is tame and domesticall is felonie. But as Mast. Stamford well noteth, it seemeth that he that stea­leth it should haue certaine knowledge that it is tame: but if the Doe be killed, and then stolen, this is certainlie felonie Stamf. lib. 1. cap. 16.. And he that theeuishlie cutteth a mans vines, by the ciuil Law is punished as a theefe L. scien. ff. arbor. furt. caes.. And by the Law of the twelue Ta­bles, if anie man did cause his beastes to feede vp­on, or himselfe did cut and carie awaie Corne growing vpon the ground, if he were of full age he was ordeined to be hanged and to be sacri­ficed to Ceres, if not; he was whipped, and did yeeld either the dammage: or if he were obsti­nate, the double. Wherein the Decem-virs did seeme to haue imitated the seueritie of Draco, who did inflict no lesse punishment vpon the stealers of grapes and hearbes, then vpon homi­cides, and sacrilegious persons: But the Ro­manes succeeding altered this, and inflicted no other punishment then that which is aboue men­cioned to be imposed vpon him, who is within age: But as the Law of Moses Deut. 23. ver. penult. et vlt., so it seemeth the Law of Nations did permit a trauailer to relieue his hunger, and to taste so manie grapes as his [Page 80] present vse did require, but not to take them awaie with him. But by the common Law, if a man cut Trees, and at the same time carrie them awaie, this is not felonie, but a trespasse: But if they lie vpon the ground a long time as the goods of the owner of the soyle, this is felonie 22. E. 3. Corone 256. 10. E. 4. 15. Stamf. 25.. The Praetors of Rome did punish a theefe poena qua­drupti: and the Iewes with the seauen-folde, or if his goodes would not amount to so much, with all the substance of his house Prouerb. 6. vers. 31.. They of Mysia do break the legges of theefes Far. lib. 2. c. 26.. The Scythians do punish petie larceners with whippes: But if a thing of good value be taken awaie, they must render the nine-folde, or els be put to death Far. lib.. Amongest the Phrygians he was put to death that stole anie instrument of husbandrie, or did kill an oxe that was fit for the plough: because the liuing of these countrie-people did much consist of hus­bandrie id. ibid.. As in Halyfax, he that stealeth but a yard of cloth is presētly put to death: because the whole liue-lode of the most of them resteth incloth.

And as to the interdiction of false witnesse or testimonie, all Nations haue subscribed. The Grae­cians did enforce their witnesses to sweare at the altar. And Plato saith, that witnesses were wont to sweare by Iupiter, Apollo, and Themis: signifying c) Cicer. pro Flac. by Themis that they which did sweare falsely did offend contra ius diuinum & humanum: signify­ing by Iupiter that they should not escape the re­uenge of the wrath of God: by Apollo that their [Page] falshood and periurie could not be concealed: and one witnesse that hath seene a thing done, hath beene more credited then ten that doe onely testifie by heeresay. Pluris est oculatus testis vnus, quàm auriti decem saith Plautus Plaut. in Trucu.. And to this pur­pose Homer did imagine two gates of dreames: one made of iuorie by which false shadowes did passe, the other of horne by which true: By the iuorie he meant the teeth, signifying that by re­port manie fables did growe: by the hornie gates he meant the eyes, shewing that the eye-sight maketh the truest report Hom. in Ili.. Iustinian calleth it ocula­tam fidem when the thing is knowne by the eye sight § vlt. Iust. de grad.. And he hath diligentlie prouided by his Lawes, that innocencie might be safe against sycophants Nouel. con­stit. 13. et 16.. And it is a diuine saying in the ci­uill Law, Testimonia, instrumenta non tam ad prae­stigium probationum, quàm e conscientiae quae mille testium loco est fide producenda sunt L. propriet. l. vlt. C. de pro­bat. l. eos test. C. de testib.. In England it is seuerelie punished by the Statute of 5. Elizab. and this is according to the Law of God: Non iurabitis in nomine meo mendaciter, neque polluas nomen dei tui: ego dominus Leuit. 19. v. 12.: For truth was so much fauoured amongest the Heathen, that the Aegyptian Iudges had the image of Truth hanged about their neckes.

And the coueting of the thinges that belong to an other man is likewise forbidden: of his wife, Qui aspexeret vxorem proximi sui ad concupiscendam eam, iam adulterium perpetrauit cum ea in corde suo Matt. 5. ver. 28.. [Page 81] And Iustinian his Law is tarte: Si quis non dicam rapere, sed attentare tantummodo virgines sacras auserit, capitali poena feriatur C. de Epis­cop. et cler. l. si quis non dicam.. And S. Chryso­stome saith well: Si mulier or natur vt viros irritet, etiamsi neminem vulneret, tamen adultera est Chrysost. in Matth. 1. homil. 17.. But some who are glad with fig-leaues to couer their faultes, and to purge their blacke iaundise with a glister of inke, doe excuse their sinne by Dauids example, hauing committed adulterie with Ber­sabe the wife of Vria, and make that their protecti­on, for which Dauid craued a pardon: But their soules are therefore more sinfull, because they fol­lowed Dauid as he was a sinner: the woman was far off, but temptation was neare, as S. Augustine saith August. in com̄ sup. Psal. 51., his owne flesh was his betrayer, and when he opened two eyes to behold her beautie, hell opened two gates to sinne: by the one of which came adulterie, by the other murther into Dauids hart. The desire likewise of an other mans landes or goods hath been euen of the Paganes detested: Vicinorum sulcos non transgreditor, ne (que) interuer­tito, saith Iustinian the Emperour Iustini. l. Georg. tit. i.. Ne transgredi­aris terminos antiquos saith Plato Plat. lib. 8. de legib.: And therefore as I haue shewed before, Terminus was worship­ped of the Romanes: for as the Poet saith:

Omnis erit sine te litigiosus ager.

And the Law of the twelue Tables was: Qui ter­minum exarassit, ipsas et boues sacri sunto. Cu. Pom­peius is highlie commended of Plinie, because he would neuer buy anie mans ground that laie [Page] and so haue beene put to death Heliod. lib. 1: Therefore some Alberic. Gentil. lib. 1. de iur. bell. c. 4. doe woonder that D. Hotoman dare af­firme that the Law of Nations doth extende to fugitiues and robbers Hotom. 7. vlt. quaesti.: and his first reason is, because there is no Law which doth interdict or forbid to couenant or contract with them: and such thinges as are not verballie forbidden, are implicatiuelie permitted: This reason is of no force, for in that they be enemies to all, and doe spare no man, they ought not to protect them­selues by that which is the Law of all men. The question is not what may bee done vnto them, and how manie haue dealt with them, but how by rigor of Law and strict reason they ought to be dealt with. To dispute of Law, is to dispute of a bonde whereby we are bound, but wee are not bounde to such. He bringeth likewise for proofe the saying of Caesar: Should it not bee lawfull for Citizens to send embassadours to their fellow citizens: when the same hath been permitted to roagues and theefes haunting the wilde woodes of the Pyrenean mountaines Caesar. lib. 3. de bel. ciuil.. But this maketh nothing to his purpose: for Caesar doth not there directly affirme that it was lawfull, but he spake it rather to bring the Pom­peian faction into hatred, signifying that they did afforde the securitie of embassing to such lewde persons, whereas to their fellowe Citi­zens they did vtterlie denie it: But heere diffe­rence [Page 83] must be held betwixt an absolute monarch which taketh pray or spoyle vppon the seas, and dominions of other princes, and these which bee pirates without all colour of iustice: there­fore the Pirats answere to Alexander is misliked, Alberic. Gentil. lib. 1. de iur. bel. c. 4. when he said boldly, That because he did robbe on the seas with one small pinnesse, therefore hee was ac­compted a pirate: but because Alexander did the same with many great gallies, therefore he was tearmed the Gouernor of a fleet Cicer. 3. de repub.: howbeit this saying of the pirate seemeth to be commended by Cicero Ibid.: and to S. Augustine August. l. 4. de ciuit. dei. it seemeth to haue beene spoken truely and eloquently, which is very straunge, vn­lesse they did accompt Alexander a robber, whom some doubt not to call so Luc. 10. Se­nec. 1. de be­nefic.: and Alciat also is de­ceiued, which not onely alloweth the said speech of the pirate, but euen piracie it selfe Alci. 1. Cons. 1., because for­sooth pirates are tollerated of some princes, and there were some nations which did publikely pra­ctise and put in vre that course of life. The Nor­manes (saith P. Emilius) as antiquaries doe thinke, did recken and repute piracie amongst laudable things p. Emil. lib. 3. Franc.: And Alciat reasoneth further, That they offend lesse then others which do so spoile vpon the sea, where the law of nations onely is of force and no other law: for (saith he) by that law the sea is common. This manner of discoursing becommeth not Alciat: but regard is to bee had, whether hee that before was a robber do afterward become a lawful & iust captaine, which Iustine affirmeth of Aristonicus Iustin lib 35: [Page] neare vnto him Plin. lib. 18. c. 6., beeing better minded then Achab to Naboth, to whom he said: Damihi vini­am quae appropinquat domui meae 3. Reg. 21.: But against such the prophet Esay pronounceth a woe: Vae qui con­iungitis agrum agro, et domum domui Esai. 5. ver. 8.: But because these thinges are plaine, they neede no further discourse.

The twelfth Chapter.
That the rules of Warre and Law of Nations are not to be obserued and kept with Pyrates, Rebels, Rob­bers, Traytors, Reuoltes, and Vsurpers.

WIth Pyrates, Rebels, Robbers, Traytors, and Reuoltes, the Law of Armes is not to be obserued and kept: for they by offending haue not withdrawne them­selues from publique iurisdicti­on Bald. 3. cons. 96.: for by offending a man may not bee said to be of more price, or of greater libertie, then he was before Paulus l. 63. ad leg. Falc., and for an other reason they may not claime aduantage by the Law of Armes, be­cause that Law springeth from the Law of Na­tions, [Page 82] and such persons may not enioie the be­nefite of that Law to which they are enemies: To these men which haue withdrawne them­selues from the communion and societie of men: and as Florus sayth Flor. lib. 3., haue broken the league of mankinde; how can the Law of Na­tions, which is nothing else but the communi­on and league of Nations, extende anie fauour. Pyrates (as Plinie saith) are enemies to all men lyuing: and therefore Cicero sayth, that if thou doest not bring to Robbers or Pyrates the raun­some which thou hast promised for thy life, there is neither offence, nor fraudulent dealing: no though thou hast promised with an oath Plin. lib. 2. c. 46. Cicer. pro leg. manil. et 3. de offic.. Spartacus that notable roague did mooue Crassus to contract a league with him: But he was with indignation reiected Appi. in Mithrid. et 1. ciuil.. Tacfarinas that famous robber of Affrike grew to such height of arro­gancie, that he sent Embassadors to Tiberius the Emperour: but his armie was sharpe against him and said, that Tacfarinas dealt verie reprochfully with him, because hee being no better then a robber by highwaies, did notwithstanding so deale with him, as if hee had beene a pub­lique or iust enemie Tacit. An­nal. 3.. Warre hath neuer been as Heliodorus well obserueth, compounded or determined by articles or leagues with such dis­solute persons, but either they haue ouercomed, and so suruiued, or els haue been ouercome, [Page] [...] [Page 83] [...] [Page] Frontinus of Viriallius Frontin. lib. 2. c. 5.: and Appian of Spartacus: of Apuleius who was proscribed, and of Sextus Pompeius Appia. lib. 1. & 4. bellor. ciuil.: which is not so much effected by the leuying of a great armie, or the increase of the same, as these writers and other historians Herodia. l. 1. seeme to think, but by the enioying of a good and sound title, and by the maintaining of a publike cause: for when Viriallius being before a robber did em­ploy himselfe wholie for the defence of the liber­tie of his country he became a iust captaine, and may well be said to haue borne lawfull armes: for which cause the Romans did conclude peace and league with him, and did likewise call him their friend: So Arsaces whilest he sought to winne the crown of the kingdome of Parthia, being his cun­trie from the Macedonians, was when he had cō ­mitted many robberies & pillages, highted a law­full king: and Aristonicus whilest hee claimed the kingdome of Asia by right of bloud and course of succession, might well be tearmed a gouernor in war and thought to haue pursued that contenti­on which is commonly called war. And so it may be noted that God himselfe would that Sampson should not moue against the Philistines without cause, but so did bring to passe that from priuate occasions he should as it were by degrees ascend to a publike quarrel Iudic. 14.: but they which ground not their wars vpon a publike cause are not properly enemies though they haue armes, and do terme themselues gouernors, & though they encounter [Page 84] such as be lawful gouernors, and haue vnder their regiment a complete armie of soldiers: he is pro­perly an enemy which hath a court or a commō ­weale, a treasurie, & power to make league, peace and truce. And Charles Martelle did say of the Sa­racens that they could not therefore cleane them­selues from the fault of robbers because they went in great troopes, & because they had captaines, & tentes, and ensignes P. Emil. li. 2., sithence they had no iust cause of war which is the only warrant of bearing armes Ceph. con­sil. 620.: What shall then be said of these French men which were taken in the Portugall warre of the Spaniards, and were not vsed as iust enemies: the soldiers I meane of Don Antonio were hand­led as pirates: yet the very historie doth conuince that they were not pirats: for they did shew forth their kinges letters, the king of France his letters whom they did serue, & not Don Antonio though for him they did fight Connest. l 9: but they which haue beene subiect to others, & are recoiled from their loyaltie of lieges becomming rebels, let them be­ware how they send embassadors to him from whō they haue reuolted. But it cannot be discer­ned by the law of nations which Phillip late king of Spaine did to certaine Flemings which came to him as embassadors, though they were neuer vn­der his legeance or subiection, their estates hauing bin free frō time immemorial, as al histories of ac­count do with clear voice pronoūce: And Dionisi­us did imprisō the embassadors of the Sir acusanes, because that city hauing driuen the tirant into his [Page] tower did set themselues at libertie Plutarch. in Dio.: but Bucha­nan seemeth to erre, which compareth two iust princes, nay such as himself confesseth to be most iust Buch. in lib. de re. Scot., namely Hiero of Siracuse, and Cosimo Medi­ces Duke of Tuscana, to two great theeues which did iustly diuide the pray, & did rule well though they came vniustly by it: for how was Cosimo a robber, if hee did vndertake the gouernement of that citie which did willingly offer vnto him the gouernment, he shold perhaps haue suffered it to be subdued by some forreigne Lord: or els haue left the regiment to others who would haue ha­zarded that ship vpon rocks and tempests, where­as that excellent man knew well how to keepe the ship in the hauen: but it seemeth that the law of armes is not bee kept to an vsurper: and therefore Constance the Emperour could not iustly bee re­proued if hee had punished these embassadors, which Iulianus being consorted with him in the Empire by the French armie did send vnto him, as he threatned hee would, for both Iulianus and the armie were rebels Amm. li. 21. But this is to bee vnder­stood onely of such rebelles and such vsurpers as haue beene sometimes in subiection, and vnder the leigeance of some absolute Monarch: for they which doe onely breake league or friendship, or ancient entercourse, are not to bee excluded from the right and benefit of embassage Alber. Gen­til. l. 2. de le­gat. c. 7.: for how of­ten did the Volscians, Latines, Spaniards, and ma­ny others reuolt from the Romanes, and yet sent [Page 85] embassadors to them without hurt or fear of dan­ger Liui. lib. 5. 6. 29. &c. & Appi. lib. 1 de bel. ciuil.: they may lawfully claime the right of em­bassage, because they had and enioyed it before their reuolt, but otherwise it is of subiects, because they had it not so, neither is it reason that they should gaine any new right, or haue any aduaun­tage by their crime or offence.

The thirteenth Chapter.
That by the law and practise of nations, warre is not to be maintained against infidels, onely because they are infidels, and that princes in their realmes may inflict punishment for straunge worships.

IF religion be of that nature, that no man ought against his will to bee cōpelled vnto it by force of armes, and that be tearmed a new and vn­usuall preaching which exacteth faith by blowes: then it followeth that such war is not iust c. 35. 23. q. 5. c. 1. 3. disti. 45. c. 3. de babt.. It is a point of irreligiousnes (saith Tertullian) to forbidde the opinion conceiued of the deitie, and that it shall not bee lawfull for mee to worship whom I would, but I shall bee constrained to worship whom I would not Tertul. Apolog. et ad Scap.: Faith is to be perswaded, not to be enforced (saith Barnard) Barn. cantic. ser. 66.: And Hilarie saith, that by a newe example men are compelled by [Page] armes to beleeue Erasm. pref. Hill.. So Lactantius saith, that religion must be established by words, not by swords Lactant. 5. Iustin. 20. 21.: & so Arnobius saith to his aduersaries: Because ye can do much by force and weapons, doe ye therefore thinke that ye do exceed vs in the knowledge of the truth Arnob. adu. ge. 4.? Ye haue heard authors, now heare reasons. That which is against the nature of a thing cannot tend to the effecting or preseruing of that thing, but to the destroying of it: That which standeth by his owne strength is not to bee vpheld by other sup­porters. This opinion of not mouing armes for re­ligion, Franciscus a Victoria a verie learned man, af­firmeth h) Victor. relect. to bee allowed of all writers none exemp­ted: therefore he saith that this could bee no iust cause to his countrimen the Spaniardes to main­taine warre against the Indians. And Didacus a Couarruuia a Spaniard likewise & a learned Lawi­er Couarer. reg. pre. §. 10., doth vouch many Canonistes and Diuines which doe teach the same. Baldus also affirmeth, that it is not lawful to wage battell against infidels liuing with vs in peace, and not being iniurious vnto vs Bald. lib. 5. de iustir.: yet Didacus saith, that Aquinas is of a contrarie opinion Couar. vbi supr.. And the fathers of the coun­cell of Toletum did make a decree touching the afflicting of hereticks by warre, which is recorded in the cannon lawe c. 3. de her. c. 5. dist. 45.. And Barnard mouing Le­wis king of Fraunce against Asia saith: Can any war seeme more iust to the then that which is most holy. The Lacedemonians also amongst other obiecti­ons made this a cause of their warre amongst the [Page 86] Athenians, and said that they were prophaners of religion: and the Athenians did on the contrarie parte charge the Lacedemonians with this, that they did drawe them that yeelded themselues out of the temples, and killed them Thuc. lib. 1.. But surely such pretenses are but colorus of auarice and crueltie, for there is no religion so barbarous, which moueth vs to slay men of a contrarie religi­on Na. Co. li. 1.. King Ferdinand entitled the Catholike, did couer all his dishonest desires with the vaile of re­ligion, as Guicchiardine noteth Guicc. li. 12.. And Charles the Emperor the nephew of Ferdinād did not garnish his ambitious enterprises with any other colour Iou. lib. 30.. But the warres of the French and other people of Europe which did relieue the Christians vexed of the Turkes, and reuenging the iniuries done to Christ haue beene liked & allowed of Couar. reg. pecc. §. co.: but that is an other question of defensiue war, which with­out all doubt is lawful, if it be maintained by them that may vndertake the defence lawfully. But now the question is whether only by pretence of religion war may be vndertaken, and this hath bin denied, and the reason is, Alber. Gen­till. lib. 1. de iur. bel. c. 9. for that the cause of re­ligiō is not betwixt man & man, but betwixt man and God: neither is the right of any man preiudi­ced for a diuers religion, because the bond of reli­gion is onely to God: & it is a law betwixt God and man. But here wee doe not speake of such, which are altogether voide of religion, and liue rather the life of beastes then of men. For they like pirates, the common and dayly enemies of [Page] all men are to be pursued by war, & to be brought by armes into compasse, and to the order of ciuill conuersation. For they may iustly seeme to bee iniurious to all men which in the bodies of men carie the appetites of beastes, yea most sauage beastes: for that there is some sparke of religion in some kindes of brutish creatures, hath beene deliuered and belieued. These are they which fight with God after the manner of the Giantes, which is as much to say as to resist nature, for reli­gion is parcell of the law of nature Caluin. li. 1. institut.. And (as Ci­cero saith, there is no nation which haue not some religion Cicer. lib. 1. de nat. deor.: for though many nations follow not a good religion, yet there are few voide of all religi­on. Baldus. 1. cons. 316. Where Agathias said, that the Almaines wer worthy of pittie though idolaters. Therfore such are to be suffered and to be taught, not to be com­pelled & exterminated: and many ciuilians haue answeared in the point, that the Iewes were not to bee molested nor enforced to the faith, though they sithence Christes doctrine reuealed vnto them differre nothing from Idolaters. Now let vs consider whether warre and sword ought to be assayed against such as despised the religion recei­ued in a Citie or commonweale: but doubtlesse they which haue vsed strange worship haue bin in all commōweales seuerely punished. Plato against such awarded a capitall punishment Plat. 10. de legi.: the ciuill lawes haue made diuers punishments Iust. 1. Apol.: for this cause Socrates is killed at Athens: Diagoras is [Page 87] proscribed, and some in other places be punished, slaine Ioseph. 1. App. Cicer. 1. de natur. deor. Plut. Nic.. Anacharsis was slaine of his countrymen: the Thracians for his greekish rites, which he did vse being returned out of Greece Herodot. 4.. And Tiberi­us was hote against externall ceremonies, and a­gainst the Aegyptian and Iewish rites. And Au­gustus did vse the accustomed religion, and did not tollerate anie new Sueton. 93. Dio. 53. 54.. And so Maecenas did counsaile Augustus to punish such as brought in new or foreine religion: because they drewe ma­nie into conspiracie, and to other inconuenien­ces, verie preiudiciall to a Monarchie Dio. lib. 52.. And some Princes for the same cause doe mislike the doctrine of Luther Guicc. 13. 20.. But other Princes which hearken to Luther are of a contrarie minde. Surely such religion as distroyeth the gouernment of common weales and Monarchies, is not to be suffered Aelia. lib 9.: But if the religion be good and do not hurt Princes, they that withstand it are like the stubberne Persians which resisted Daniell Dan. 6.. But some perhaps will saie, that diuersitie of religion hindreth the societie of men, as contrariwise the vnitie thereof doth preserue it, which Philo spea­keth of his countriemen the Iewes Phil. de for.. And others haue said that by the difference of religion and sectes, and by the distance of life and maners ha­tred and seditions arise, by which euils, ci­ties often do perish. All diuersitie of religion dis­solueth gouernment as Cardanus thinketh Card. 3. de sap.. And a moderne polititian doth earnestlie auouch the [Page] same Lips. in po­lit.. Wherefore Procopius saith, that Christi­ans by disputing subtillie of their Faith, and con­tending amongest themselues, doe stir vp sedi­tion Procop. 3. Goth.. And an other historian addeth: If at anie time controuersie doe arise of Faith, parents do not onely dissent from their children, but the husband from the wife in seditious manner Nic. Call. 17. Histor. 7.. Valentinian and Gratian both famous Princes, doe denie vnto Va­lens neare vnto them in bloude, aide and succour for this diuersitie of Religion Zonar. Cedr. Callis. 11. hi­stor. 49.: and added fur­ther, that it was not iust nor godlie to helpe an vngodlie man, and to enter into a societie with an enemie of God, a professed Arrian. And vpon that reason Iustinian the Emperour mooueth the French against the Gothes, because they also were Arrians Procop. Goth. 3. 4.. All which come to this summe, that the Princes cause may seeme iust, who suffereth one Religion, and which maintaineth it by punish­ments. Yet some are of an other minde, that force is not to be vsed against them which em­brace a contrarie Religion: but they temper their opinion with this caution: Nisi quid detrimenti il­linc respub. capiat. Vnlesse the common weale may re­ceiue some dammage thereby Alber. Gen. lib. 1. de iur. bel. c. 10.. And therefore Au­gustus is reported to haue fauoured the syna­gogues of the Iewes, because to him they seemed not Bacchanals or conuenticles made for distur­bing peace, but the schooles of vertue Phil. de legati.: for many times vnlawfull assemblies be vnder pretence of Religion l. 2. de ex­tra. or. l. 1. de coll., which are neuer without daunger, and [Page 88] haue alwaies been forbidden Mant. in orat. pro Sext. & Asc. pro Cornel.: But when it is apparant that such meetings are not made of euill intent, the prohibitiue Law ceaseth Alciat. 5. consil. 107. Launpr. Plin. vltim. epistol. 103. 104. Euseb. 3. 27. 33. Tertul. apol.. And there is an Epistle of the Emperour Marcus extant, forbid­ding Christians to be troubled, vnlesse they were conuicted to haue attempted some thing against the common weale, and if nothing were obiected vnto them but diuersitie of Religion. And Alex­ander Seuerus did allowe the priuiledges of the Iewes, and did tollerate Christians. And Traian did before commande, that the Christians should inioy their libertie being instructed by Plynie of their innocencie . Euen in S. Peters Church at Rome the Easterne people and the Aethiopians doe offer sacrifice after their maner, & are mainteined at the Popes charge Ioui. lib. 18.. The Lutheranes are permit­ted to haue their publique exercise in all the prin­cipalities and dominions of the house of Austrich in Germanie. But diuers Religions are not permit­ted of the Lutherane Princes: though Bellarmin affirmeth it, but of the Papistes which is denied by him Bellarm. 5. cont. lib. 3. c. 19. et 18.. One Religion onlie is not professed in the citie of Augusta, of Ratisbona, of Frankford, and other free Cities of Germanie In such sort liue the Polonians, the Heluetians, the Rhetians, and thou either deceiuest vs, or els art deceiued Iustus Lip­sius Lips. de vna relig., which deniest that there is but one Religion in any one principalitie of Germanie. There is in­deed but one suffered of the Lutherane Princes, & this is true, notwithstanding Bellarmins premised [Page] assertion: But of the Princes of Austria not onlie the religion of Luther is tolerated, but euen the heresie of the Anabaptistes. And whereas Bellar­min saith, that three onelie Emperors did permit diuers religions: namelie Iouinian, who was reprooued by Synode: Valens who was an Ar­rian: and Iulianus who was an Apostata. Surelie there is none of sound iudgement but will agree with him in this, that Princes ought principallie to regarde the vnitie of Religion, as a thing most pleasing vnto God: who hath said by his holie Apostle Ephesi. 4. vers. 5. 6. Vnus Domiuns: vna fides: vnum baptisma: vnus Deus et pater omnium [...].: If God, Faith, and Baptisme in generall, and quo­cunque modo would haue serued, Paule who in his heauenlie Epistles vseth not one word superflu­ous, would not haue said vnus, vna, vnum: would not haue vrged it, would not haue exac­ted it, would not haue cried for it. Yet I would not haue weapons and armes to stir vp warre for Religion onelie, if rebellion or disloialtie be not mixed with it: For heresies may be punished, and yet citra bellum, without warre. Let Lipsius there­fore uu) Trismeg. de nat. deo. Dio lib. 42. be silent, who saith that it is necessarie to con­tende by weapons, whilest some goe about to preferre their religion before other some: or else saith he, it will be no religion, which is cold and calme. To this warlike note & hote humor, which argueth his want of pollicie, and that he is neither wise as a serpent, nor simple and milde as a doue. [Page 89] It may be aunswered that warres for Religion are onelie there to be tolerated, where there is no religion at all, or where subiectes pretende religion as a cause of their rebellion, not where there is diuersitie of religion. Nay it is no reli­gion which is hurt to the slaughter of Citizens and subiectes, and the desolation of kingdomes or countries. Are not the Aegyptians to be laughed at, which with mutuall warres and woundes did afflict themselues, for a monstrous and absurde religion on both sides Trismeg. de nat. deo. Dio lib. 42.: For it appeareth by Diodorus Siculus, that the diuersitie of Religions was to this purpose brought into Aegypt, that the people might disagree amongest themselues, and so haue no leasure nor opportunitie to conspire against their king Diodor. Si­cul. lib. 2.. The Aegyptians (saith one Phil. de 10.) are by nature wont of little sparkes to raise great flames: For the Aegyptians as others report of them, are men vnconstant, raging, proude, in­iurious, desirous of nouelties, and willing to chaunge a present state wish an erroni [...]us liber­tie Vopisc. Dio 39. 42.: And therefore it was well considered by Augustus and Tiberius Emperours, that no Sena­tor, that is, no noble nor mightie man should gouerne Aegypt, or should goe into Egypt Tacit. an­nual. 2.. But that Princes may commaunde the due obserua­tion and practise of Religion, according as God infourmeth their consciences by the rules of his sacred worde, and the instruction of his true tea­ching [Page] spirite, in their Realmes, dominions, and kingdomes, wherein they haue absolute power, and may with seuere punishments correct the frowardnes of men addicted to straunge wor­shippes, may by the vnited practise of all com­mon weales be conuinced. A king saith Aristo­tle in auncient time was the Gouernor in warres, the Ruler in iudgements, the maintenour of Re­ligion Politic. lib. 3. c. 11. et 5.. This hath been obserued of the Assiri­ans, Persians, Medes, Iewes, Graecians, Romanes, and all other the most eminent Nations of the world Iustin. Procop. Cursius. Varro. D. August. 3. 4. 5. et 6. de ciuit. dei.. And so it is reported in Scripture of Asa, that he tooke away the altars of the strange Gods, and the high places, and brake downe the Images, and cut downe the groues, and com­maunded Iudah to seek the Lord God of their fa­thers, & took away out of all the cities of Iuda the high places, and images; therefore the kingdome was quiet before him 2. Chronic. 24.. And Iustinian the Empe­rour speaketh imperiously: We command (saith he) the blessed Archbishops of Rome, Constantinople, Alex­andria, Theopolis, and Ierusalem, to receiue for ordei­ning and installing of Bishops, onely that which this present law doth allow Nouel. constit. 123.. Archadius setteth downe both law & punishment in some cases of religion. If any Bishop refuse to communicate with Theo­philus, Atticus, and Prophyrius, he shall lose both his Church and his goodes: if any that beare office, [Page 90] they shall forfeit their dignitie: hee shall lose his seruice: if any of the common people, let them be fined and exiled Nicephor. li. 13. c. 30. Sozome. lib. 8. c. 24.. I will not insist longer vpon a matter plaine, but will cut off these lines to auoid tediousnes.

FINIS.
Faultes. Leafe. Corrections.
Agree fol. 4. a. disagree
ar fol. 6. b. is
prescribe 9. b. proscribe
Dominus 13. b. dominus
soundly 20. b. fondly
and 21. b. one
Aroutius 24. a. Acontius
repeated 24. b. reprooued
ar lesse 38. b. at least
Cluitius 38. b. Cluilius
victoria 41. a. victori
Batari 42. b. Bataui
farelet 43. a. forcelet
repelit 44 b. repetit
Latinum 54. b. Latium
indice 54. b. iudice
conuay 64. a. courage
cibicall 64. b. ciuicall
Fulminea 77. b. Fluminea
Clesoninus 77. b. Cleonymus
ipsas 81. a. ipsus
Viriallius 83. b. Viriathus
discerned 84. a. defended
(There want these wordes) 90. a. if any souldier.

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